Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1877-12-27

GENrLaMES OF THE JuRY-I under.
stand that you are not n adv TO give a yer.
diet am here at your written request
asking me TO give you further ins,ruc.
tons. | aGl now prepared in pursnance
of duty enjoined on me, and oniy under a
deep sense of such obligation, to receive
any proper request from you.
Il then read Sec. 3S4 Of our code of Grim.
lnal prucedure.)
await your wishes.
Here the foreman presented to the court
the annexed paper, to-wit:
Court Room, Dec. 2Sd, 1877.
10 HIS Honor, Judge Shannon:
Wlll you please answer few questions
and oblige this jury, as We cannot agree:
lst Are We compelled by our oaths, as
Jurors, to return verdict in favor of plain
TN, II the statements made in said publics-
ton are proven to be untrue, nOtwithstand
ing the article states that thev are so in.
formed. and they feel it their duty to make
public?
Cd. Can We return verdic, in favor Of
defendants 1t We believe these statements
were untrue, and-were made without malice
or wiliu'ly intended to lnjure the parties men.
lie goods
Sd. Was it necessary for the defendants
70 prove that they were in possession of
facts TO sustain their chargee
j. Z. ENGLISH, Foreman.
Whereupon his honor remarked 10 the
jury, as follows, to-wit:
BY THE COURT II am extremely desi.
rous to perform my duty toward YOU, in
regard to your desire tor information on
these points. But must first have full time
to consider their nature and scope, and when
IN answering them, l must reduce nv an
swer to writing under the law. This will
require proper and reasonable time. must
deliberate we'll over the whole of the mat
tiers thus referred to me- cannot ofcourse
say how long time will be necessary. It
may be hours, or until tomorrow morning.
l shall do my best, in reason to oblige yol:
and when l am ready to reply shall send
you word.
And accordingly on Monday the Oath day
of December the court gave the following
written charge to the jury, being in compli-
ance with section 3S4 of code Of Grim. Proc.
which makes it obligatory upon the court to
give the jury further instructions when re-.
quested SO to do.
GENTLEMEN OF THE JURY Your writ
ten requests for further instructions, have
imposed an unsought du'y on me and have
necessltated further examination of the
law of libel as it exists in this territerv.
According to our code, the freedom of
the press consists in publishing the truth
with good motives and for justitiable ends
and in publishing all such fair and true re-
ports as are embraced within section BIG
Formerly, in criminal prosecutions. the
truth cou,d not be pleaded in defense.
Hence arose the common maxim: "The
greater the truth the greater the libel ("
which subjected the old laws on this sub
Ject to great deal of ridicule and cor.
tempt
Happily our law. following modern state
constitutional provisions and examples
makes the truth defense when published
With the motives and for the ends already
named
Broadly viewed, proof of the truth of the
charge alone is not sufficient in every case !:
for there msy be cases where the matter
published, because of its ohscenlty or BIAS
phemv. is not fit to be spread before the
public, whether true or false
In my first charge, I quoted section 3l6
of our penal code, in reference to the priyi-
leges of reporters, editors or proprietors of
newspapers. With this exception of non.
liability for fair and true report of such
proceedings, ETC., our code seems to hold
this class of persons to the same rigid re-
sponsibility with all other persons who
make injudicious publications. And our code.
in this respect, appears to be in c,nsonance
with the legislation of Ito say the least(
two of the most enlightened and liberal
states of the Union.
The legislature of the state of New York
in the year 1854, enacted statute from
which ours is framed, as follows: "No re.
porter, editor, or proprietor of any news.
paper, shall be liable to any action or
prosecution, civil or criminal, for a fair
and true report in such newspaper, of any
judicial, legislative, or other public official
proceedings; or Of any statement, .peech.
argument or debate in the course Of the
same, except upon actual proof of malice
in making such reports, which shall
Tin no case be implied from the fact of nnb.
"lication. s2: Nothing in the preceding
section contained shall be 80 construed as to
protect any such reporter, editor or pro-
.p.letor from an action or int ictment for
any llbelous comments or remarks super
added to, and interspersed or connected
with such report"
See our section 3171.
The penal code of California adont.d n,
late as 1872, on the subject oflibel, is almost
rerbatim the same as ours. [See Cal. penal
code. section 249 to 257, inclusiyel. "'
1t is no Defense" (says Judge Cooley
Const. Linn, page 455), ''that they"-iniur-
ious communications of libels "haye been
copied with or without comment from an.
other paper or that the source of the in.
formation was stated at the time of the pub
lication; or that the publication was nade
in the paper without the knowledge Of the
proprietor, as an advertisement or other.
wise; or that it consists in criticism on the
course and character of candidate for nmh.
lie Office" ''' pun
A criticism is one thing, and a libel is
another. an a comment, or judgment, passed
or expressed on acts done, or actual conduct.
is far different from false aspersion or n
malicious defamation. Criticism upon pnblic
men or officers, their actions, character. and
motives is not only recognized as legitimate
but large latitude and great freedom Of eI.
preston permitted, SO long as good faith in.
spires the publication, and malicious injury
to reputation avoided. There are caaes