Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1878-03-14
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8udlOlnS Tue nGnte OF the aCCNSd0y No
where in the instructions did tho court IL
innate 40 opinion that the article wss 4 u
bel. 1t simply deffned that o~ffense; ant
law and the fact. they must dispsssionatsl,
examine the publication.
In no part Of the charges did the cour
state an opinion that the publication was
made willfully and With a malicious inten,
to injure ON the contrary, that whole ques
ton was left to the Jury. 1t Is quite true
that the court, in responsc to the jury. ask.
ing if they could return a verdict for defen.
dants, i they believed the statements were
untrue, did slate the presumptions arising
from tae fals,ty of statements in a libelous
article. This the cour could not avoid.
Malicious intent may generally be proved
in two ~ways-either by proof or presump-
ton Of lao, The penal code itself SO pres.
cribes |, declares that the terms malice
aud "maliciously." when applied = the in
tent with which an act is done, Import 3
wish to vex. annoy or irjure another per.
son, established either by proctor presump-
ton of law.
The court Was bound, therefore, to state
any legal presumptions and the more espe-
cially because the code, under the head of
libel, expressly enunciates thst an Injurious
publication is presumed to have been ma
licious, If no Unstable motive for making
it is shown The main witness for the
prosecution testified distinctly to the fslsity
of the statements, and by no witness of
their own did the defendants attempt to
show their truth, which would have been y
justification, II with good motives. The
whole evidence in the case coming, then,
from the prosecution. what did the court
scrupulously say 10 the jury! Why this
that whatever evidence Of any kind for the
defendants they might find in the testimony
for the prosecution, must go in favor Of the
accused, They were also told IN the clear.
est language possible that they must md
esch one Of the elements Of the %offense, be.
you'd a reasonable doubt; LIST, that there was
a libel; %, that it wa published BY the de-
PENDANTS Sd, that it was published willfully
and with malicious intent; and 4th, to ln]ure
John L. Pennington, the person named in
the indictment.
of newspapers were also fully set forth by
the court. to wit; that they are not liable to
any prosecution for q fair and true report
of any judicial, legislative or other public
official proceedings, etc except upon proof
Of malice, etc. And this entire question Of
privilege was squarely LEFT to the jury. 1t
was not and could not be pretended that
the article in the defendants newspaper had
any relation to judicial or legislative pro-
ceedings; and it was left TO the jury, with
out any intimatiou whatever from the court,
to determine whether it fell within the
meaning Of other pubic Official proctt1in9s.S
This was, certainly, very favorable to the
defendants; for upon examination since,
l have found a decision OF the Court o.
Appeals Of New York, giving construction
TO this portion of our statute, in which !,
is held that to apply the words public OH
cisl proceedings" 10 an executive act to he
performed by q single official person, and
which admits of ne debate or deliberation
would be q perversion of the scope anG
meaning Of this act" Sanford v. Bennett
"a n. Y, 90.
And again in Hunt '. Bennett (of n. Y
Herald), 10 n. y, la, it was claimed tina,
the alleged libel wa. the defendants opinion
Of the plaintiffs character and qualifca
tons as an officer, and that whether it wa!
that case, under an almost IDENTICAL st.,ute7
a. In this case, it was asserted that the arti
Gle was Privileged. But what said the Cour,
OF Appeals? Just this, emphatically: 81
the defendants opinion Of the plaintiff:
character and qualifications as an otSce,
had been contained in q remon.trancs
against his appointment to the Office fol
which the defendant asserted he was a can.
.dldate, and had been presented to the an.
pointing power, without an unnecessar,
publication in q newspaper, as in this in.
stance, OF wide circulation, the point would
have been well taken. AS it il, he has been
"assailed through the columns of a public
"journal, as if he was q candidate for The
"sutrages Of the people, and not of an ap.
pointing power, consisting of a few per
sons. IT WAS NOT, THEREFORE, A PRIV.
"LEGED PUBLICATION
Consequently from these two decisions,
this court would have been justified ~ in.
structlng the jury that, under our Code. the
article in the defendants, newspaper vas not
privileged. Instead Of. doing so, this whole
question, like the others, was left exclusive
ly to the jury. 1t follows, also, that if not
privileged, and not true, then the publica-
ton is legally presumed to have been mali
cious.
One other consideration, and 1 shall have
finished this necessarily lengthy opinion.
By our Code, on the trial of an Indictment
for libel, the jury have the right to deter
mine the law and the fact. From this pro.
vision has sprung a misapprehension in the
minds Of some lawyers, tending to a belief
that the judge should not, in such . case,
charge the jury at all, or, at least, that he
wrong in instructing them the second
This is q grave misconception.
Apart from our Code, the rule was 90 Well
settled that it became q maxim, that, at i,
the Office of a Judge to instruct the iurv in
points of law" Judge Cooley in his admit
able work on Const. Linn, page 1863, states
hat, wherever such provisions exist, the
ur!y, We think, are the judges of the Law
nd the argument Of counsel upon it il
ighttully addressed to both the court and
he jury" Nevertheless, Ne conceive it to
proper, and indeed Tie day of the Judge
o instruct the jury upon the iaH in these
ases, and it ia to be expected that they viii
e%nerally adop: and follow his opinion"
While the jury are thus made judges of
Law, As well as Of the facts. sill they are
OF and cannot be, deprived Of the right to
the court for information a, to the law.
hey are chiefly laymen, taken from almost
the walks of life-are no, yersed in the
w; and they have from time immemorial.b v
lie common Law, this inherent aud cons;itu.
onal privilege. The trialby jury would not
: preserved in lis integrity. If the ~Iao;ela-