Daily Los Angeles herald., 1879-03-08
ThistIeton's Case.

WHICH aUCacneS 10 the eQlt0r OF tne
Jolly Giant, now a prisoner in the
Los Angeles Jail, following his con-
viction for libel, we publish below
Judge Morrison's decision on the
application for Thistleton's dis.
charge on habeos corpus:
In the District Court of the
Fourth Judicial District of the State
Of California, in ami for the oity
and county of San Francisco -
Hon. r. f. Morrison, Judge.
enoRoa Ma ea''f. Tnrsr1nros. } On eo,pSs. "assa'
DECISION.
THE COURT. This is an applica.
ton for the discharge of George
Thistleton on habeas corpus. The
petitioner complains that he is un-
lawfully confined and restrained of
his liberty under process issued by
the County Court of Los Angeles
county, and therefore is entitled to
q discharge.
The material averments of the
petition are that on the Goth day of
September, 1878, the Grand Jury of
Los Angeles county found an in.
dictment against the petitioner for
libel alleged to have been commit
ted on the 7th day of September,
1878, at said county of Los Angeles,
by the said George ThistletOn, in
unlawfully, willfully and mali.
ciously publishing defamatory
matter of and concerning one Hum
bert r. Brown; that on the 25th
day of November, 1873, he was
tried in the County Court of Los
Angeles county, and that on the
goth day of said month the jury
brought in the following verdict:
"We, the jury, find the defendant
guilty of libel as malice in law, but
not in fact, as charged in the in
dictment. George Carson, Fore
man." That, therefore, to wit, on
the goth November, 1878, motion
was made by the defendants coun-
sci to discharge the prisoner on the
verdict of the jury; and thereafter,
to wit, on the I'd of December, 1878,
motion was made by the defend.
ants counsel for a new trial; and,
also, to wit, on the "a Decem ber,
1878, motion was made in arrest
Of Judgment; all of which said mo-
lions were overruled by the Judge
If said Court; whereupOn the pris.
)ner was sentenced to imprison-
nent in the County Jail of the
county of Los Angeles, for the
.erm of one year.
The return to the writ shows that
Judgment was duly entered by the
County Court of Los Angeles coun-
" Oh the verdict of the jury In the
,ase of The People vs.. George This.
'letop, on the 9Th day December,
1878, the commitment was duly is.
'ued to the Sheriff of said county
IN the same day, both the judg.
nent and commitment being regu.
ar in form.
The ground of this application is
hat the verdict of the Jury is a
utility, and that Judgment en-
cred on such verdict is void.
II is general rule of law that a
Judgment of a Court is never abso-
utely void when there is q juris-
LECTION over the person and subject
however irregular and er-
oneous the proceedings Of the
Court may have been. Therefore,
t might be conceded that the YER.
iict In this case Is not in due form |
md was not such q verdict as the
Court should have sustained. But |
t does not follow by any means
hat the Judgment is void because
he verdict was irregular in form
'We, the jury, fad the defendant
,uilty of libel, as malice in law.
,ut not in fact, as charged in the
Strip this verdict of
verbiage and it reads;
I'VE, the jury, find the defendant
,uilty of libel, as charged i'm the
which is certainly a
,ood verdict. The jury further find
lin guilty Of libel as malice in
aw, but not in fact; and malice in
aw is the malice charged in the
There is a distinction
,etween malice in fact and malice
II law. "rhe word malice is used |
II its popular sense as denoting
mere hatred or ill-will; but in its
egal sense il denotes an intent to
10 an unlawful act without legal
Justification or excuse" People vs..
Taylor, Seth CAL, 266.
The verdict, therefore, does find
he petitioner guilty of that kind
Il malice which was charged in the
II is well settled that surplusage
|oes not vitiate the verdict. "Sur-
'lusage does not vitiate the remain.
ng part of the verdict, which must
tand or fall by the legal effect of
he terms in which it was given"
Joyt VS.. NAPLES, 1st Minnesota,
'age 150.
"If the jury in returning a ver-
|ict find fact which Is entirely
that portion of the ver-
lict may be rejected as surplusage."
tucker VS.. Corcoran, 47th New |
hampshire, 81.
Gin constituting the verdict, the
main object is to get at the mean
ng of the jury. If this can be
dearly ascertained from the verdict
tself, it will be sufficient though it
,e not in the ordinary form, or
,lothed in language usually EN-
,loyed. II it intelligibly find the
ssue, it answers every requirement
substances being regarded, rather
han FORM" Sd Graham and Wa.
erman on New Trials, 1877.
Therefore, If the jury find ver-
Iict on the issue, and also some-
hing beyond it, the latter will be
elected as surplusage, and it will
lot be allowed to vitiate the verdict
,onformably to the maxim, "utite
,er inutile non Vitidtur." First
Graham and Waterman on New
Trials, 1SG. i
And very recent case, decided
,y the Supreme Court of this State,
holds the same doctrine, namely:
hat surplusage will not vitiate a
that which is surplusage
Will be stricken out and rejected.