The Leavenworth weekly times. [volume] (Leavenworth, Kan.) 1870-1880, 1878-01-03

vided in the act relating TO crimes and pun
ishmen's that, "in all prosecutions, or in
dictmentS for libel, the truth thereof may
be given in evidence 10 the jury, and il II
appears u them hat the MISTER a. charged
a. libelous was true ant was published with
good motives and Tor iI~;iii20le ends, the
defendsrl shall De acquitted but the law
makers, Jealous of the liberty OF the pres,
and fearing tie construction u the law by
the courts IN such Prosecution, further pro-
vided in succeeding section OF the same
acl that, lin all indictments or prosecutions
for libel, the jury, after having received the
direction OF The court, shall have the right
TO determine, at their discretion, the law
and the facts" Sections 212 and 30, gen.
eral statutes 311.
While the rule OF the common law, as
generally applied, was 50 exacting and rig
orous 10 the defense of Justification in GRIM
inal prosecutions Tor libel, different
doctrine was applicable in civil cases. In
the case Of King vs.. Root wend. III, l39,
Chancellor Waiworth clearly states this diff
ference as follows: The difficulty which
existed in England, previous ~ Mr.. fox's
libel act, was that IN criminal prosecutions
the defendant was not permitted TO give the
truth in evidence; and vet the jury were
required 10 imply malice. But IN civil
cases the defendant was permitted 10 give
the truth in evidence as a full jurisdiction.
such was declared 10 be the law by the
Judges al the time that bill was under dis
cussIOn in parliament, and there never has
been any alteration Of the law IN England
on this subject in civil suits The case OF
/ King ct al W. Root supra, was originally
tried at one oil the circuits III New York
be ore Hon. Samuel X. Belts. The de1en-
dants, King and Nerplank, were editors II
the New York Amerioda, printed IN the city
oil New York in 1924. These editors pub
lished concerning one Root, lieutenant-gov-
ernOr of that state, among other things, that
in August Of that year he addresses the
state senate, then IN session, while Diinu
with d sion and rum; when he was un-
washed, unshayen, haggared, with tobacco
Juice trickiing from the corners OF his
mouth, and in i condition outraging all
orier. decencv and forbcarance. Root
brought civil action Ia recover damages
for the alleged libel and the defendants ad-
mitted publications and plead the truth
as Justification The trial Judge instructed
the jury. Iii the defendants had only pub
lished the truth, they had an unques'lonable
right to do that, and they must be acqult-
ted" The chance! ON review held the
instruction proper.
blackstone in bis commentaries, asserts
that the truth could always be given IN
civil cases in Justification oil libel, and
seems 10 consider the defendants example
in such instances a. extended to him IN
consideration If his merit in having warned
the public against the evil practices oil
delinquent lie s,ys that 1t Is dimnum
I cbsgue iajurio, intimatlng that the acts OF
, the defendant. who justIlies lIbelous publ
cation, does not constitute wrong IN It's
legal SENSE, and then proceeds to observe
that is agreeable 10 the reasoning OF the
I civil law. % b., com. l25.) This Is Hog
: zeal. and Starkie bases this exemption on
the better reason that in such instances the
plaintiff has excluded himself from his
I right of action at law by his own mlscon-
duct. and not to any merit appertalning to
: the defendant. When a plaintiff Is really
guilty of the offen-e imputed, he does not
: offer himself To the court as blameies-
n party, seeking a remedy Tor malicious
mischief: his original misbehavior liml :
q the whole transaction with which II Is con-
Y nected and precludes him from recovering
I that compensation to which all innocent
. persons would be entitled. tFolkard' :
o Starkie on Islander and libel, am. ed. sec
= 692)
v There are many good and sufficient rea
: sons why a publisher Of a statement true
{ i'm fact. vet given To the public with ma
licious design to create mischief, should be
. amendabe to the criminal laws, and not be
: liable i'm a civil action. On general primer
pl.s no right to damages can be founded OF
a publication of the truth from the consid
: GRAFTON that the reason for awarding dam
J ages in every such case fails. The right t'
!, compensation in point oi natural justice L
!, founded on deception and fraud which have
!, been practiced by the defendant to the Diet
= riment OF the plaintiff. If the impuiatioI
y is true there i no deception or fraud ant
no right TO c1mpen- alton. The criminal &C
!, ton in libel is supported 10 prevent and re
strain tie commission Oi mischief ana IN
convenience 10 society. FOR Instance
take the case Of two men who agree To en-
gage together in tisticutis, III. law Tor th'
. protection Of the peace oil society anu u
= prevent greater collisions may arrest ant
, uunish both combatants, and vet neither
= NAV he able to recover from the other per
II sonal damages. Where person makes tn
II notification solely to disturb the harmon!
~ and happiness OF society, or To maliciousl,
l Il
III IN create misery bv exposing the latent sn'
'e personal defects Of associates or acluaInt
'r apces the Interests of the public requir
r some preventive. notwithstanding the truti
Is of the publication. This is furnished b.
y the criminal law. But mere injury to tn
70 imagination or feeling, however maliciou
q it NAV be in its origin, or painful in 1t
's consequences, is not properly the subject o
u remedy by an action for damages, such OF
T. fepses being unconnected with any sustain
n able right are incapable of pecuniary ad
IL measurement and redress; they admit q
T. no exact definitions and, therefore, TO ex
" tend a remedy TO such injuries general
q would be productive OF great uncertaInt
- and inconvenience and open Tar too wide
VI field of litigations. Again, il seems TO b
- clear that party who acquires an advan'
age by conceding the truth which he coul
AZ not have attained to had he divulged II, 5
O. far is guilty of fraud in the conceaimer
ie that he cannot upon any principle claim
nc right to acquire that benefit, and therefor
cannot complain that he Is injured by tn
vi publication Of the truth. Starkle 10. 30.
nd In this view the truth hurts no one.
ty In accordance with this doctrine that tn
b. defendant is justified in law and exemI
ID from all civil responsibility, If that whic
it h. publishes be true, ii IL provided In III
L. civil code. section l26, that in all actor
he mentioned in the last section, libel an
nd SANDER the defendant may allege Ii
m. truth of the matter charged as defamator,
ii and NAV prove the same and any mItigal
TO mo circumstances. 10 reduce the amount {
nd damages, or he may prove either. In
section Of the code may he construed
lis mean ..in actions for libel or Islander, tn
ed defendant NAV allege the truth OF the ma
In ter charged as defamatory and may prov
Tor the ; me, as defense OF full justification
"a and The NAV also allege) any mitigatin
he circumstances lin the same answer 10 r.
IN, duce: the-amount ofjdamages, or he ma
al prove either THE truth as defense, OF mi
or. ioating circumstance to reduce the dan
nj. ape.uD In other words. under the code II
IN, truth is full justification in civil actio
mi and in the absence OF justification, m tiga
al ing circumstances may be proved to redu'
is the damages; and justification and mitig
ne tion NAV be set forth in the same answ
It'll and the defendant may prove either or bot
not Gen. Stat, 653.
n. fit he conceded that within the provi
ion of the constitution, the proof oil u
nat truth As defense IN civil action Is
ed, justification, except 1t be also made 10
The pear that the publication was Mad ior lus'
ew liable ends. We answer that In view oil u
a rule of law applicable in such cases at u
for time # the adoption OF the state consult
nd tons, we do not think such constructit
al. proper. 1t il not in accordance Win u
nth spirit or the letter Of that instrument:
ion provides that in civil and criminal actor
IN.