Evening star. [volume] (Washington, D.C.) 1854-1972, 1885-11-14
THE HICKS LIBEL CASE.
The Instructions of Judge Cox to the
Lury.


The following is the full text of the charge of
Judge Cox to the jury yesterday in the Hicks
libel case against The STAR:
In the Supreme Court of the District of Column
bia, William W. Hicks VS.. The EVENING
STAR NEWSPAPER COMPANY, before Mr.. JUS
tice Cox and a jury, Washington, d. C., Nov.
18th, 1855.
| CHARGE OF THE COURT.
GENTLEMEN OF THE JURY:-The substance OF
the complaint in this case is that the defendant
published false charge against the plainfiff.
to the effect that he had offered to sell the
bones of Guiteau for 81. 900 tor mercenary pur-
poses, and in violation of a trust reposed in
him by paper executed by Guiteau just before
his death and called his will. Such an imputa-
ton would undoubtedly tend to bring man to
disgrace and contempt inasmuch as such con-
duct would involve violation OF delicate
| trust, and would involve very Sordid and mer-
/ cenary motives Although that subject has not
been discussed. my opinion is that an mputatiOn
| that sort would be, in the strict sense of the
law a libel, and the only question for you to
determine is whether, according to the rules of
evidence. sufficient proof of this libel has been
produced before you.
might say here, in general that the law re
/ quires an element in the offense of libel,
malice. There are two kinds of malice, express
| and implied. Wherever n publication Is libel
| Gus, that is where it imports to "a man some dis
graceful conduct, il is not necessary for the
! plaintiff to offer proof of any express malice to
| show that the defendant really harbored ill
| feelings toward him, felt any hatred toward
him. but the law implies 1t from the mere fact
! of publishing against man charge which
tends to disgrace him and which is false.
The only Importance of ascertaining whether
! there was any express malice or not relates to
/ the question of damages. The law implies
/ malice in every libeiOuS publication, but If it
| turns out that there was no express malice; if
| the publication was made through care!essness
or oversight, and there was no ill-will, then the
law only allows the jury to give II man the ac-
! tual damage which he suffers; whereas II 1T APP
( pears that the defendant was actuated by hatred
anu ill-wiil toward the party injured, or il it
! appears that lie acted through mere wanton,
reckless disregard OF the rights and reputation
| of the party assailed. there the jury will be al
| lowed not only To give damages by way OF COM
| penSation Tor any actual injury suffered, but
also what are called vindictive. exemplary
damages, by way of making example of the
| defendant and preventing him from practicing
/ the same conduct again. That is the Only i'm
! portant difference between what is called eX-
| press malice and what is called implied malice
/ Without any proof of actual malice, If the pub
! licatiOn is libetous the plaintiff Is entitled to
! recover something, whether purely nominal
! damages, to vindicate his reputation, or dam
ages Tor an injury actually Sustained, but in
| that case there would be no punitive damages
When We come to the proof the first thing
| offered is the publication in the newspaper
| You will observe i'll the first place that in form,
this is not assertion that The plaintiff ever
! aid offer to sell the bones of Guiteau for nler-
| cenary purposes and in violation OF a trust. In
| fact il is not assertion that he did offer to
sell tiuiteaus bones at all: IL is simply the
publication OF some gossip between n reporter
! employed by the paper and Coz. Cor!ihill, in
/ which the former is represented inGuirin@
/ of the latter whether it is true that DR.. Hicks
| had offered to sell Guiteaus bones for 81. 1000;
and the latter simply replied that he had been
! SO informed. II is true that malicious inpu-
! tatiOn may be concealed under mere hint,
a smear or question. Ii. for instance, news
! per should publish an inquiry whether the
Secretary OF the Treasury had not received Il
/ bribe for allowing claim against the govern
! ment or should ask whether Judge of this
court had a, not received bride for Ger Ger:
orS would be INCLINED to consider that an insin-
uation or a chafS &c of the fact that a bride had
been received, although in form it would be a
mere Interrogation. 1t is not therefore, aSso-
lutely important whether the article COM
planned OF is in the form OF a direct assertion,
in the form of a hint, an insinuatiOn
inquiry; provided the jury are satisfied that the
meaning OF it is toimpy an assertion of the fact
which is insinuated or limited at or inquired
/ about. That Is always a question tor the jury TO
decide; that is to say. ii a newspaper publishes
inquiry whether a certain thing has
not happened, or publishes the narration of a
conversation in which one man inquiries and
another answers, if the design OF the editor OF
the newspaper is to convey the idea, to convey
the charge, to convey the insinuation that in
point of tact the thing happened, that is eQui-
valent to an assertion of the fact, and that is
the question which the jury must decide.
Therefore it is always necessary when in form
the publication is not a direct assertion OF
false charge, for the declaration or bill of COM
plant OF the plaintiff 10 contain an averment
that the defendant thereby meant that the
plaintiff did thus and So. That is IA fact which
you must be satisfied about before reaching
verdict.
So much for the form OF this publication.
The publication has been produced. You
cenary motives and nothing at all about a
breach of trust. 1t simply represents the repOr-
ter as inquiring whether the plaintiff had not
offered to sell Guiteau'S bones for $1,000. If
that were all, should be disposed to say it was
not a libelous publ even if il amounted
to the assertion: because ii is consistent with
entire innocence of purpose, in much it
might have been for a benevolent object. or it
might have been done in conformity with the
@ he
not ACKNOWLEDGEMENTS any mercenary motive
any wrongful conduct. But i'll order 10 meet the
complaint here that there was IL mercenary mo-
tive and breach OF trust, further evidence was
offered to you to show that Guteau had il,
point of tact, executed "a paper, attempted to
make a Will, in which he devised or beqIeathed
his remains to the plaintiff, upon the express
condition that they should nos be used for any
mercenary motive; and proof was also offered
To show that this fact was known To some OF the
readers of The STAR-to at least one reader of
THE STAR, and therefore, when this imputa-
ton of attempting to sell was made known to
him, he necessarily understood that it involved
a breach OF trust. because me knew it would be
a breach of the trust created by Guiteau's So
called Will. In this way TIE plaintiff has EN-
deavOred to make out proof of his entire COM
/ piant-thai is. that this publication taken in
connection with the outside facts of the will of
Guiteau and the knowledge OF that Will by
other people, substantially imputed to the
plaintiff an attempt TO make sale of these
bones for mercenary purposes and in breach of
trust.
/ There is hardly any dispute if any at ALL
about the fact that Guiteau did attempt to exc
cute paper in the shape oil "a WILL which con-
tanned this condition. That fact has been testi-
ned To before you and no evidence has been
I adduced 10 contradict it. There is no denial
either, of the fact that DR.. Allen. one of the
! readers OF The STAR, knew il was reDDrted
that Guiteau had executed will in those
terms: and therefore when DIR. Allen saw this
publication in which il was ut least limited that
the plaintiff had attempted to sell Guitcaus
bones, he knew that would be contrary to what
was claimed to be the will of Guiteau and con-
sequently would be a breach of trust. Perhaps
the principal question for you to determine is
whether the publication in the shape of a mere
Interview between reporter and the former
district attorney was intended by the defend
ant 10 convey tine idea To the public, in other
words, was intended to be q charge of the fact
| that this plaintiff had attempted to make such
sale in violation of the trust. In the cOnclud-
| ing part OF the declaration, land that is the
/ Meaning thereby that the said William W. Hicks
of the aforesaid Guiteau for the 81 GOO for
rnercear purposes and i'll violation of the CON
| hded to him by the said paper writing.
! On this question, as have already stated
4 where the publication complained of is not ex-
piicii IN Its terms, is not in form direct asser-
| ton OF the fact. then IL is necessary for the
plaintiff to- add to his avermcnts that il meant
| To charge something deroIttOry to his charac-
| ter On the question whether it meant to con-
vey that charge we have not received proof
I either way. We received proof of all the outsd
facts that could throw light upon this question
We received proof in this ease OF the facts in
| relation To Guiteaus supposed will and the
knowledge of that will; but il is left TO the urv
Liant aRsaIx 70. inf tfatt, s1I1