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

tne ElRneSt court Ot tnAt etat6 held that the
communication was privileged, and could
not support an action for libel, unless the
plaintiff could show that tho petition was
malicious and eroundless. and presented
for the purpose Of iDjuring hts character.
A similar ruling was made by the gu
preme court of Pennsylvania, where party
was prosecuted for charges against a justice
of the peace, contained In deposition
made TO he presented to the governor of
that state, who had the appointing power.
This rule protecting the right Of petition,
is subject however, to this qualification,
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 10
the appointing power for the removal of
the governor OF this territory, or for his
discontlnuance as such? Has it been at all
pretended that it is such case!
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 a newspaper of a false
libel, in relation to candidate for public
Office (to-wit, candidate for the office Of
lieutenant governor), though such public,-
tion was by voter and the editor of the
paper, in the course of contested election,
was not an exception to the general rule oi
liability for silch fa1ao 1iho1
In my first charge to you, stated that
malice on the part of the publisher is con-
clusively presumed, or inferred, if the iniu-
rious publication is false. Our code (sec.
ton 312) declares that t'injurious pubiica-
ton il presumed to have been malicious, II
no justifable motive for making it is
shown"
Now, what, under our code, amounts to a
justification The answer is, that the ac-
eused 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 juatiiable ends,
the party shall be acquitted.
If the prosecution shows the fa'sity Of the
matter contained in the publication, malice
is, prima tacie, implied. The f,lsity, in
other words, is prima ,facie, evidence of NAL
ice; and proof of justification or 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 TO 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.
If 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-
ton Of malice hoth in fact and at law. You
will remember that the defendants in
his 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 attempt
ed to be shown.
So far as the matters at issue in this case
ire concerned. the only other justification
n our code is contained in section 3lG, al
'eady referred to. Editors and proprietors
If newspapers are justifable in publishing
uch fair and true reports of proceedings,
tatements, speeches, arguments and debates
S are mentioned in that section. And in
making such fair and true reports they are
lot liable to prosecution, except upon proof
# malice as therein set forth. In such
ases, the prosecution must give actual proof
II malice. Aud these explanations bring
ne to consider the main points addressed to
ne by you.
If the statements made iu the publication
et forth in this indictment are proved to
,e untrue, beyond reasonable doubt. then
follows that it constitutes no defense
merely, and of itself to allege that "the ar
lcle states that they the dcfenasnts-
are so informed, and they feelit their duty
0 make public"
1t is no excuse for Il false hbel-if you
'elieve it to be such-to allege, either in the
ibel itself or otherwise, that the publishers
we're merely informed Of its correctness, and
hat, therefore, they felt it to be duty to
i've such false information to the public.
There would be no legal redress for defa-
nation of character, if such false principle
hould prevail. For every SANDER and libel
he flimsy excuse would be "why, I was
old so, and l felt it to be my duty to spread
and to make it public" Informants
'ould be plenty, and reputation would be
'orse than an empty bubble. The object
t a good government is to protect reputa-
ion, as we'll as life, and liber rty, and proper
=. With honorable members of society.
haracter is as dear and valuable as any Of
he others.
If you believe, beyond reasonable doubt
hat the article in question is not fair and
rue report Of public official proceedings
ut unfair and untrue-and that the accus-
tions contained in the article are false, it is
or yourselves to say that there is an absence
+ that willfulness and malice
ssential to convicting persons for the pub
cation of libel.
The misdemeanor in this case consists in
libel willfully and with mali
ious intent to iDjure another.
You must find each one of the elements
f the offense, beyond reasonable doubt;
,at there is libel, that it was published
y the defendants. wilfully and with such
lalicious intent to injure John L. Pen.
ington.
I have defined for your instruction, what
libel, what is the meaning of the words
willfull "and malicious?" have re-
eated the words of our code that "an in.
lrious publication is presumed to have been
if no justifiable motive for max
g it is shown" l have also given YOU
lch other explanations in regard to malice
my judgment dictates to be correct and