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

dict l am here at your written request
asking me to give you "further inslruc.
tons" am now prepared in pursuance
OF duty enjolned on me, and only under a
deep sepse of such obligation. to receive
any proper request from you.
then read Sec. 384 of our code of Grim.
lnal prucedure.)
await your wishes,
Here the foreman presented to the cour,
the annexed paper, to-wit:
- - Court Room, Dec. 23d, 1877.
10 HIS Honor, Judge Shannon:
Wlil you please answer q few questions
and oblige this jury, as we cannot agree:
lst. Are we compelled by our oaths, as
jurors, to return q verdict in favor Of plain
TIL, it the statements made, in said publics.
ton are proven to be untrue, nOtwithstand
ing the article states that thev are so in.
formed, aud they feel it their duty to make
publics
I'd. Can we return verdict in favor ol
defendants If we believe these statements
were untrue, and-were made without malice
oriwiltully intended to lnjure the parties men.
toned In said publication, but for the pub.
lie good?
Sd. Was it necessary for the defendants
to prove that they we're in possession OF
tacts to sustain their charge?
j. @. 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 for information on
these points. But must first have full time
to consider their nature and scope, and when
IN answering them, must reduce my 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. 1t
may be hours or until tomorrow morning.
l shall do my best, in reason to oblige you;
and when l am ready to reply rhall send
you word.
And accordingly OH 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 duy on me, aud have
necessitated O further examination of the
law of libel as it exists in this territory.
According to our code, the freedom of
the press consists in publishing the truth
with good motives and for jus,ifiable ends
and in publishing all such fair aud true re.
ports as are embraced within section 3l6.
Formerly, in criminal prosecutions. the
truth could 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 rid!cule and con-
Tempt
Happily our law, following modern state
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;
Tor there msy be cases where the matter
published, because of its ohscen,ty or bias
phemv. is not fit to be spread before the
public, whether true or false
In my first charge, quoted section 316
If our penal code, in reference to the privi-
eges of reporters, editors, or proprietors Of
newspapers. With this exception of nom
liability for fair and true report of such
proceedings, etc., our code seems to hold
his class Of persons to the same rigid re-
possibility with all other persons who
make injudicious publications. And our code,
n this respect, appears to he in consonance
With the legislation of Ito say the least),
wo of the most enlightened and liberal
tates of the Union.
The legislature of the state of New York.
n the year 1854, enacted a statute from
Vhich ours is framed, as follows: "No re-
porter, editor, or proprietor of any news.
paper, shall be liable to any action or
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, apeech,
argument or debate in the course Of the
same, except upon actual proof of malice
in making such reports, which shall
in no case be implied from the fact of pub
lication. e.: Nothing in the preceding
section contained shall be so construed as to
protect any such reporter, editor or pro-
p.ietor from an action or inc ictment for
any ibelous comments or remarks super
added to, and interspersed or connected
with such report"
See our section 317].
The penal code of California adopted as
ate as 1872, on the subject Of libel, is almost
srbatim the same as ours. [See Cal. penal
ode. section 249 to 257, inclusive1.
1t is no Defense" (says Judge Cooley
onst. Linn, page 455), ''that they"-iniur-
Jus communications of libels shave been
opied with or without comment from an.
ther paper; or that the source of the in.
was stated at the time of the pub
cation or that the publication was made
! the paper without the knowledge of the
roprietor, as an advertisement or other
Use or that it consists in criticism on the
purse and character of a candidate for pub
C Office"
A criticism is one thing, and q libel is
lother. A comment, or judgment, passed |
expressed on acts done, or actual conduct |
far different from false aspersion or =
alicious defamation. Criticism upon public
en- or officers, their actions, character, and
olives is not only recognized as legitimate,
1t tlarge latitude and great freedom of ex-
esaion permitted, SO long as good faith in.
Tres the publication, and malicious injury
reputation avoided. There are cases
here it is clearly the duty of every one to
cad freely what he may have to say con-
rning public officers, or those who NAV
esent themselves for public positions.
trough the ballot-box the electors approve
condemn those who ask their suffrages;