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

communication was privileged, and could
not support an action for libel, unless the
plaintiff could show that the petition was
malicious and croundless. and presented
for the purpose Of iDjuring his character
similar ruling was made by the su-
prelne court of Pennsylvania, where psrty
was prosecuted for charges against Justice
OF the peace, contained in q deposition
made to be presented to the governor of
that state, who bad the appointing power
lhls rule protecting the right of petition,
is subject however, to this qualification,
that the petition or remons,rance must be
addressed to the body or officer having the
power OF appointment or removal. or the
authority to give the redress or grant the
relief which is sought; or at least that the
petitioner should really and in good faith
believe he is addressing himself to an au-
thoritv possessing power in the premises.
But is the case before you, gentlemen Of
the jury, one claiming to Re petition to
the appointing power for the removal of
the governor OF this territory, or for his
discontlnuancc as suchs Has it been at ali
pretended that it is such case?
l have spoken of the difference between
libel and that latitude of criticism upon acts
done, which is allowable.
In the well-known New York case of
Root v. King, the supreme court held that
the publication in newspaper of false
libel, in relation to candidate for public
office (to-wit, a candidate for the office of
Lieutenant governor), though such public,-
tion was by voter and the editor of the
paper, in the course of q contested election.
was not an exception to the general rule Of
liability for such false libel.
In my first charge to you, stated that
malice on the part of the publisher is con-
c!usively presumed, or inferred, if the iniu-
rious publication i, false Our code (sec-
ton Sl2) declares that 'iniurious publica-
ton il presumed to have been malicious, if
no iustifable motive for making it is
shown"
Now, what, under our code, amounts to a
justification The answer is, that the ac-
cused may justify, by giving the truth
in evidence to the jury, and if
it shall appear to the jury that the matter
charged as libelous ID true and was published
with good motives and for justiiiable ends.
the party shall be acquitted
Ii the prosecution shows the fl sity Of the
matter contained in the publication, malice
Is, prima tacie, implied. The falsitv, in
other words, is prima .tacie, evidence Of NAL
Ice; and proof of justification OF excuse lies
on the accused. In the New York case last
quoted, it was held that malice will, in such
case, be implied from the nature of the pub
lication its If, or from its falsity and the
defendant is then bound 10 show its truth.
in order to justify. And this is what was
meant and intended in the first charge to
you in regard to the presumption growing
out of the falsity Of an Injurious publication
Ii the prosecution proves the falsehood of
the statements in libelous article, and the
accused offers no evidence whatever of any
kind, 1t then becomes conclusive presump-
tion of malice hoth in fact and at law. You
Will remember that the defendants in
thls case, did not produce solitary
witness before you. All the
evidence has been produced by the
prosecution. The truth of the charges in
the defendants newspaper, was not a,temp.
ed to be shown.
So lar as the matters at issue in this case
are concerned. the only other justification
IN our code is contained in section ZIG, al
ready referred to. Editors and proprietors
OF newspapers are justitiabIe in publishing
such fair and true reports of proceedings
statements, speeches, arguments and debates
as are mentioned in that section. And in
making such fair and true reports they are
not liable to prosecution, except upon proof
OF malice as therein set forth. In such
cases, the prosecution must give actual proof
OF malice. Aud these explanations bring
me to consider the main points addressed to
me by you
II the statements made iu the publication
set forth in this indictment are proved +,
be untrue, beyond reasonable doubt. then
II follows that it constitutes no defense
merely, and of itself to allege that "the ar
ticle states that they the dcfeuaants-
= are so informed, and they feelit their duty
to make public"
It is no excuse for false libel-if Won
believe it to be such-to allege, either in the
libel itself or otherwise, that the publisher,
were merely informed of its correctness, and
that, therefore, they felt it to be duty to
give such false information to the public.
There would be no legal redress for defa-
nation of character, if such false principle
should prevail. For every slander and libel
the flimsy excuse would be "why, l was
told so, and felt i. to be my duty to spread
it and to make it public" Informants
would be plenty, and reputation would be
worse than an empty bubble. The object
OF good government is to protect reputa-
ton, as we'll as life, and liberty, and proper
". WIN honorable members of society.
character is as dear and valuable as any Of
the others.
If you believe, beyond reasonable doubt
that the article in question is not fair and
true report Of public official procsedings-
but unfair and untrue-and that the accus-
ations contained in the article are false, it is
for yourselves to say that there is an absence
of that willfulness and malice
essential to convicting persons for the pub
lication of libel
The misdemeanor in this case consist, in
publishing libel willfully and with mali.
clous intent to iDjure another.
You must find each one of the elements
of the offense, beyond reasonable doubt
that there is libel that it was published
by the defendants. wilfully and with such
malicious intent to injure John l.. Pen.
nington.
have defined for your instruction, what
is libel, what is the meaning of the words
willfull and malicious?" have re.
peated the words OF our code that can in.
furious publication is presumed to have been
malicious, if no justifiable motive for max
Ing 1t is shown" have also given YOU
such other explanations in regard to malice
pov i,1In