The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1889-01-18
The Arguments in the Lowe.
Herald Case.
IT rs A DISGRACE TO JUSTICE.
be Allowed to Stand The Plain
tiff's Reputation.

first one called in the Supreme Cour!
yesterday. Arthur Brown and Judge
Sutherland appeared in behalf of the
appellant and o. w. Powers aired his
legal rhetoric for the benefit of the wild
and woolly man from Wellsville, Cache
County, whom twelve good men and
true, aided, it is alleged, by the Judges
charge, had decided THE HERALD had
damaged to the tune of S. 600 in conse,
queuce of the publication Of an article
to the effect that he had committed an
assault upon a half-witted girl who re-
sides in the same pastoral community
THE ARGUMENTS
we're opened by Arthur Brown. He
read the complaint. and referring to
the testimony given by Lizzie Grant,
the half-witted girl in question, claimed
that it amounted to a justification of
the publication of the article. The case
should have been submitted to the jury
with the statement that, if they be-
lieved the story as told by the girl
| Lizzie, the plaintiff would not be en-
titled to recover. The evidence offered
| on the trial in the court below was a
complete justification of the published
article. The fact that the word rape"
| had been used did not necessarily i'm
ply that that crime had been COM
mitted. The trial seems TO have pro-
ceeded on the theory that the article
admitted to have been published by the
defendant did, ia fact, charge the plain
tiff with the crime of rape. 1t is true
the word rape is used, and there is the
direct charge made that the plaintiff
was guilty of that offence. An ex-
PLANTATION, or detailed statement, of the
act follows; and, taken as whole, the
article does not amount to
A CHARGE OF THAT oFFENsE.
The essential elements of the crime, as
stated in books and indictments, are
omitted from it. It was not stated. in
formal language or in substance, that
the occurrence took place by force
against the will of the female. In fact,
taken as a whole; the reader is lei ID
inter that the rape was not committed.
The article was, perhaps, libelous,
whether it charged rape Or not, II false,
but not that it charged that completed
| crime. Whenever party is charged
by naming some offense. but the expla-
| nation following it and accompanying
| il shows that no such crime had been
committed, the publisher or utterer
cannot be prosecuted for the SANDER Or
| libel contained in the charge of crime.
| For instance, if one should say to an
other. "He is thief; he stole my land, "
| the libel or SANDER contained in the
word thief is so qualified and ex-
planned that there is no such charge of
| crime in it.
THE QUESTION HERE IS
not whether there was a libel or not,
but in determining the charge as given
on the subject of attempt and the SUI
fciency of the justification. The
court, in effect, charged the jury that
unless the defendant proved all the
tie clinical essential details and elements
of completed rape, then the justifica-
ton was no defense. This, we say, is
an error. The charge in the article
itself was merely that of an attempt to
commit crime. Proving the facts
substantially as they are stated, was a
complete defense. whether they
amounted to rape or anything less or
other. Hence, it was misleading for
the court to call the jury's attention to
all the technical ahd essential details of
the crime. and then, after doing so.
add: "a charge of the commission of
crime is not proven by evidence tending
to show an attempt to commit it" and
also, proving part of the substance
of the charge is not defense"
THERE WAS NO EVIDENCE TO JUSTIFY
this kind of charge. The injured
person detailed on the stand, and made
complaints to others, of story sub
stantially the same as that published by
defendant. If believed. it was the duty
of the jury to find for the defendant
aud only for the plaintiff if they dis
believed that story. But the charge
given by the court left the jury al
liberty to believe the girl, and that be
committed all the acts she complained
of, and believe the complaints she made
to other parties. and also to find fol-
the plaintiff. The issue was not left tt
the truth or falsity of that story, as il
should have been, but is made to turr
as to whether thatstory amounted to 6
completed rape or only an attempt. The
court made the justification depend
upon the fact of sexual penetration. !
If the jury did not believe that thai
took place, then they were to find fol
, the plaintiff, and the justification was
no defense. The article only charges
an attempt and states the acts done
Proof of these facts was complete
justification, and the proof of a part O.
them was a justification pro tantO, tt
the extent proven. In other parts o
the charge the court did correctly lay
down the rule; but it is well settled
that correctly stating the law on ont
part of the charge does not cure thu
error of an incorrect or misleading
statement in another.
THE charge, taken as whole,
INVITED THE JURY
to find a verdict upon the issue
whether the act complained of wa
completed or not. The court excluded
the evidence of what the girl said Il
others by way of complaint immedi
ately after the occurrence. This, also
was an error. The effect of such rul
as commended for, is illustrated by the
objections of the counsel for the pla n
till at the trial, and there was no ques
tion could be asked. Every question
designed to draw forth the fact of ;
mplaint or the nature of g complaint