The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1876-04-16
DALAI. Ann 10, 1875.
TO the Editor OF The Dalla" Herald

DALLAs, April 10, 1875,
10 the Editor OF The Dallas Heraldi
IN the Commercial OF yesterday
evening, under the heading Of "a |
Model Declslou,n "The Press Muz-
zled,u "a Second Daniel Come 10
Judgment IL an article which very
unjustly assails the ruling OF Judge
as w. Cutler and ellis, for libel. I'M
der the facts aud the law OF this par
tlcular case Judge Burford held that
the libelous matter In that paper In
reference 10 Mrs. Starr was such that
defendants could not place its truth
fulness Ia justification OF the libel.
This ruling Ia clearly correct. IL has
been fer ages the doctrine OF the com.
mon law 10 Internationally prohibit
the publication OF any character OF IL
belous matter against any PRIV ate ill-
dIyldual, for the reason that such pub
LEGATIONS are calculated 10 lead 10
breaches of the peace and other dis
turbances And this common law
principle still prevails In Texas, except
so far as II has been modified or
changed by our statutes. Then let III
see how far our Legislature has
changed this common law principle.
The section OF our Constitution re-
ferred to In the article in the CONNER
cial plainly and by its terms has refer
ence TO men In public positions and
to public matters-not to the conduct
or character Of private individuals.
But our statutes on the subject are
plain and postive-all constitutional,
and binding upon oil courts, and furn-
ish an inexorable rule. The wisdom
or policy OF the law, AZ remarked by
Judge BurfOrd in rendering his decs-
ion, cail not be questioned by court,
but the court must administer the law
,as he finds II In the books. The
law of this case, ~ settled by the
Legislature Of this State (Paschal's Di-
gest, article 22S2) Is AZ follows;
"The written, printed or published
statement to come within the deiini-
ton of libel, must convey the idea,
either, i. That tue person TO whom 1t
refers has been guilty of some penal
ofIense, or, 2. That he has been guilty
of some act or omission which, though
not penal ofiense, IL disgraceful to
him as member of society, and the
natural consequence of which Is to
bring him into contempt among hon
orable persons, or, 3. That he has some
moral vice or physical or mental de-
feet or disease which renders him unfit
for intercourse with respectable society,
aud such as should cause him tc be gen
orally avoided, or, L. That he is notori-
ously OF bad or infamous character or,
>. That any person in office or candl-
date therefor Is dishonest, and, there
fore unworthy of such Office, or that
while in Office he has been guilty of
some malfeasance rendering him un-
worthy OF the place.
The State based its prosecution on
the second subdivision OF the article
above cited, to-wit: that Mrs. Starr
had been guilty Of some act or omis
sion which, though not penal oflense,
IL disgraceiul to her as member Of
society. .
BY article 2302, Pashals Digent, the
truth of any statement charged as a
libel may be shown in justification Of
the defendant !. "Where the publ
cation purports to be an investigation
of the official conduct OF officers or
men in public capacity. 2. Where
it il stated in the libel that person
has been guilty Of some penal offence,
and the time, place and nature of the
oilense is specified in the publication
Q. Where il is stated in the libel that u
person is of VIGOROUSLY bad or In
famous character. 4. Where the pub.
LEGATION charges any person In Office or
n candidate therefor with want of
honesty, or having been guilty ofsome
malfeasance in Office, rendering him
unworthy of the peace. In other
cases the truth of the facts stated in
the libel can not be inquired into.
Compare article 22S2 with article
1902, and bearing in mind the fact that
being procuress Is not penal otiense
that the ruling of Judge Burford was
entirely correct, and that the structures
and complaints of the Commercial
should fell upon the law and its maxi
ers, and not upon the Judge who
rig htfully construes and enforces it.
The Commercial charges Mrs. Starr
with ian act which, though not a
penal otiense, is disgraceful to her as a
member of society,"" The common
law, which ia the rule of action in this
State, unless otherwise provided by
the statute, did not permit this charge
to be justified. The statute law of this
: State does not, In single line or sent
ence, permit such justification, and
Judge Burford would have wantonly
and knowingly violated the plainest
provisions of the law had he permitted
such proof to be adduced. LEX.