The Leavenworth weekly times. [volume] (Leavenworth, Kan.) 1870-1880, 1878-01-03
TIE LAW OF lIBEI.
The Rights Of the Press and the Esco.
pie-An Important Decs on b the
Snpreule Court Of kamsas.

Z. 3. Caste vs.. ID. W. Houston.
Error from LeaveDworta county.
THE COURT, HoRToN, c. J.
This was an ac-4un commenced in the
District Court OF Leiyeuworth county, 10
recover damages ior libel.
The petition alleges in substance, that
the defendant was editor, proprietor and
publisher ol the Leayeuworth Daily Com
mereiui, a newspaper printed in the city OF
Leavenworth, and that on the 10th day OF
January 1870, there was published in the
said paper, of and concerning the plaintiff,
a certain false and malicious libel, in words
a. fellows, to-wIt:
The insurance department OF our state
will in all probability be subject TO a thor
ough investigation, as bill has alre ady
been introduced into the senate TO iDvesu-
gate. This is right, every in-urance com-
panv in the state is willing an Investigation
be mad. Mr.. Russell, ex-superintcndent,
invites it, and the present superintendent Is
anxious for the same.
There is a cadaverous looking indiyid-
ual Of Leavenworth loafng around here
who seems exceedingly anxious Tor an In
vestisation in hopes that the superintendent
will be done away with and the department
presided over by the auditor. A cierk-hip
In the dim distance makes him enthuse. i
cannot blame Castle much knowing that
board and other bills too numerous 10 men
ton have been pressing him Tor. some time,
and then doubtless the Northwestern Lie
would be glad TO hear from MIN, as he Wa,
published as a defaulter 10 that company.
lie is one OF tie most promising individuals
10 his landiordsl know % and the cay oi
fraud from such a completely played out
insurance agent, has but little bearing with
an intelligent body OF Legislators. IL his
caIibre was as large is his bore, he would
| n. a success" JACK.
In answer to the petition, defendant set
up three grounds Of defense:
| First, an admission that the article COM
planned Of, was published In defendant ,
paper, OF and concerning the plaintiff, but
| denied that the same was published with
malice.
Second. that defendant had no personal
know ledge OF the publication oi the article
al the Time oil It's publication, with the iar'
Their allegation, that the several matters
and thing. in the article, complained oil a'
d.famalory, were trIe, and published Ioi
iustitiable ends and purposes; and
Third, a general denial.
To the answer, plaintiff filed reply de
nying generally, save and except what wa
admitted, all the allegations III the answer
| When the case came ON Tor trial, IL wa
submitted 10 a jury, AMI piaintIn obtained
a verdict Tor : 80 10 whereupon delendan
paye notice of mu,ion Tor a new trial, which
was filed, and alter being duly argued wa
bv the court sustained, upon the gronnC
that the cDurt had erred in Its instructions
To the Jury. 10 which ruling OF the cour
in sustaining said motion the plaintif dul,
excepted, and has brou shI the case here Tor
review.
In appears from the record that tie cOur
below granite the motion Tor a new trial
On the ground that the jury was mlsdirect
ed ty the following instructions, viz:
The fact of the language being true
not alone an answer 10 the charge, but cai
only be shown in mitigation OF damages"
1T is not defense simply To show IN
truth of the matter published, but the part.
must 90 further and SHOW that II was no
only true. but that he acted with good mo
tives and ior justitiable end, and that n
lad some purpose in vies that was I'stiha
bic. Ii that be the case, II he acts honesti.
for good purposes and for justlhatle emu
and what he says is true, then he Is to b
excused or acquitted.
In this condition OF the case, We mus
first inquire whe ther the Instructions abov
sci forth, were Improperly given on iie tri
al If erroneous, a. Il statement oil the la'
| controlling the case, they certainly ma
have uiisled the jury: ii Correct IN principi
and applicable under the issues presented
the court erred i'll granting new trial 10
tue reason given. An examination of TIL
| question will lead TO brief review OF IN
i law of libel in both criminal and civil pros
ecutiunS. 80 far As to consider and deter
mine when a defendant may be Permltte
to give the truth in e.idence as a iull just
tication of alleged libelous matter.
was at one time the rule OF the con
mon law, that the truth of the charge, how
ever honorable and praiseworthy the mo
tives Of the publisher, coul'
I not be given in evidence in crimlna
prosection. Hence originated the iamiiia
maxim, 1.-THE greater the truth, the create
/; the libel" This doctrine was based upc
n the theory that where 1t was hol
estly believed a particular perSo
Q had committed a crime, it was ii
duty of him who so believed {
who so knew, to cause the offendt
;. To be prosecuted and brought to justice,
in settled state OF government part
: grieyed ought to complain for an injury
The settled course Of law land to negle
q this duty and publish the Offense TO Il
i world, thereby bringing the party pubiish'
:, into disgrace or ridicule, without an oppo
: tunity to show by the judgement OF cou
Il that he was innocent, vas libeliops, and
: the matter charged, was in tact true, Their
: by insuring social o,tTacism, the lnJui
!. caused by the publication was much great'
. than where the publicltion was false
n false publication it was contended, coul
n be explained and exposed; true one wi
= difficult to explain away. As an addition
r. al reason ios this rule, il was also held th'
such publications. even If true, were prov
cative of breaches of tie peace, and u
!. greater the truth contained tn rein, II
!. greater the liabilities of hostile meeting
, therefrom. That this was the true rule
i the common law has been denied by mar
! of the ablest Jurors in both England al
:. America. no maintained that the Iber
. of the press consisted in the right to pu
n Iish with IMMUNITY. truth, and with goo
r motives, and for justifiable ends, whether
"a respected governments, magistracy, or IND
10 yiduals. Ii certainly was derived from Il
4 poIluted source Of the star chamber, al
- was considered at the time an innovaiio
4 but like other precedents, although arr
trarily and unjustly established, It came
10 be followed generally by the courts al
70 sustained as the law OF the land.
In 1904. in the state of New York, Il
principle of law was recognized and assert
rs in the case of The People vs.. Croswell.
a that case the defendant was prosecuted, ]
I'd libel for having published in his newsr
e. per. at Hudson, in that state, called
20 Wasp. the charge against Thomas Jefierst
a then president, that he (Jeferson) paid q
OF lender for calling Washington a trait
is a robb.r and a perjurer. The defenda
IL through his counsel, Alexander Hamiit'
{ applied to the judge at the circuit to
OF OF the trial to obtain the testimony OF Z
lender to prove the publication true. Lew
lei presiding. denied the motion, becar
he the testimony was inadmissible, as the tru
,u Of the facts charged as libelous did I
is amount to complete justification. job
oil n. y cases, 1856.
II This case attracted so much attention Il
I'M after verdict Of guilty had been render
an and while the case was pending IN
~ courts of New York on a motion for n
he trial, the legislature Of that state passed
Il law providing in every prosecution
.x writing, or publishing any libel, it sho,
~ be lawful for the defendant, upon the trI
10 give in evidence in his defense, the trl
Of Inc matter contained in the Publicat
a, charged as libelous, and that such, eylde'
should not be Justification, unless
.bnnld be further made satisfactorily to I
~ near ,ha, the matter cnarged as libel'
- was published with good motives and
~ ;u-,if,ble ends. Since the adoption OF
III Jo,la NJ the In n