Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1878-03-14
the TAYLOR llsEL CASE.

the TAYLOR LIBEL CASE.
Opinion OF Judge shannon On the Mo.
tion for a New Trial-The Motion DE.
MED.
IContinuedl.
BY reference to the original case in the
Oyer and Terminer, People Y. Har,uns,
II How. Pr. $50 it will be seen that it was
established by proof (other than that Of
jurors that one of the jurors inquired of 8
constable who was in attendance, whether
"the jury could not bring in a verdict Of
"manslsughter, stating at the same time,
that ifthey could do SO, the whole jury
would agree on such a verdict. The con
..stable, in violation Of his duty IS we'll ~
"his oath, undertook to give his opinion.
H said he thought they could, but added
shat they had better consult their foreman,
"who being a justice Of the peace, would pro.
"bably know. The Revised Statutes we're
subsequently sent for by the Jury, and
"their provisions in relation to the crimes
"of murder and manslaushter> examined"
The other charges of misconduct rested, said
Harris J. upon the affidavit Of the defen
"dants counsel who do not profess to have
ANY knowledge on the subject themselves
but make their statements upon their in.
formation and belief. Nor do they give
'the sources Of such information. From
'the character of the charges, however, i may
"be inferred that it was derived from some
lone or more of the jurors themselves. The
"constables who were in attendance upon
"the jury, have each so far as they could,
denied the truth ofthese charges"
As to the exception that the jury improp-
erly consulted q copy Of the Revised Statutes,
it was admitted that it was established by
competent evidence; and yet both courts
denied the motion for . new trial. And
why? For the sole and manifest reason
that, after the misconduct, they were again
instructed BY the court as to the nature of
nation between them.
People, 4 Park, Or. f., So, also . case Of
murder. A new trial was asked on the
affidavit of the constable that, st the request
Of juror, he handed to that juror a paper
on which were marked the punishments fixed
BY law for the different degrees of man
slaughter. The affidavit showed that this
paper was handed to the juror before the jury
came into court for further instructions. This
element OF the case was particularly noticed
by the court in denying the motion.
come, finally, 10 consider the alleged
error in the charge to the jury. Although
the learned counsel for the defense were
so requested by the court on the hearing
yet they declined to speak to, or argue, this
point. 1t was so far abandoned, that they
it over in silence: but they did no,
as alleged In the motion, it should have
oeen pointed out, and argued, and urged
before me; so that, by the light of leea]
criticism and authority, l might have a fsi,
opportunity of reviewing the question. The
speclncatlon, howerever, stands thus mutely
before me; and l was bound, at my owl
1oa ana Investigation, 10 ascertain whether
or not error was committed. have ey.
amined it carefully and IN all its bearings
and, as at present advised, am unable to find
any such error.
Inc specification consists in an isolated
passage taken from the second charge to
.ne jury. hey were instructed to consider
oo.n charges together; they were written
ano taken into the jury-room. But tue
sense ana true meaning offs paragraph, or
eA1ract, cannot be obtained unless by read
ing Win the context: This is canon Of
Interpretation everywhere. The whole
charge to q jury should be taken together.
and II without straining any portion of the
language, it harmonizes as q whole. and
larry and correctly presents the law ear
ing on the issues tried, the verdict will moi
be disturbed, -
INT Jury were instructed in the verv
language OF our Penal, Code, that every
person who willfully, and with q malicious
intent to lnjure another. publishes any
iioel, IS guilty of misdemeanor': and that
an Injurious publication is presumed to
ave been malicious, if nojustifsble motive
ior making it is shown" And again, that "in
aii criminal prosecutions or indictments for
!ioei, tue truth may be given In evidence TO
.ne jury and If 1t shall appear to the iury
.na! me matter charged as libelcus is true,
euu ~ pooilshed with good motives and
Quilted" And further, that mo renorter
editor, or proprietor of any newspaper. ia
llaole TO any prosecution for, 4 fair and true
tepo!to or any Judicial, legislative, OF other
puo!ic oMclal proceeding, or of any state.
inens speech, argument, or debate in the
course OF tie IN except upon proof of
malice In making such report, which shal'
10 no case be implied from the mere fac, !.
Of publication"
lhsy were also instructed that eff the !
prosecution shows the falsity of the matter !
eonsained IN the publication. malice is.
'rtnl1 Jdc'e, implied. The falsity, in other !
Sords, Is prtDaa Jtdc9 evidence of malice {
'ao PROOF OF Justification or excuse lies on {
ne accused Notwithstanding this, the
iaestlon OF malice. or malicious ip,ent.rt
as ieit entirely to the jury in the follow Z
y INSTRUCTION.. to-wit: III you believe, a
'eyonu a reasonable doubt. that the article !
z question Is not a fair and true report Of a
'uolic official proceedipgs-but unfair and I
.nlrue-andt that the accusations contained q
a the article are false, 1t is for yoursgres to Ii
~ that there is the absence OF tina, an. b
ttness and malice essential In .on ii