The record-union., 1894-03-28

man attempting to violate woman. 1t was
rather that of urgent solicitation by one ana
somewhat reluctant yielding by the other,
Ia her than of force.
He says: 81 went away, and made up my
mind fhat things were liked between tnen,
and went back and went 10 bed" When
asked why he did not interfere, he answered:
~ was working for him, and l did not thlnk
IL was my business, anyway. did not pay
much attention to that kind of business any
way. have seen lots of that kind OF Dusl-
ness before. did not pay much attention 10
it,"
Notwithstanding this professed indiffer-
ence, he had left his chamber in the lott OF
the stable and secreted himself in conyen-
lent place for the purpose of observation.
Again describing it, he says:
Il saw him and her up near his bedroom
door, and all the noise stopped then, ana l
went back and went to bed" And again,
upon being asked Ibid you see her go into his
room?" his answer was, al say they must De
in the room at the time, because tnere
was no further noise after that Inc last Ias
saw OF them they were IN the MID
die of the hall about opposite MS
room door L saw him pulling her To-
wards the room, but did not see them go into
the room. then went to my own place and
went to bed He speaks of no unusual
noise, except that few minutes before lie
alone" and his voice saying "Shut up" 1t
was this, and his curiosity, that drew him to
his place of observation al the door opening
nto the hall where the scene occurred.
Assuming Barry'S statements to be true,
they fall far short OF supporting the charge
under Investigation, and they are utterly
lrreconcilable with the statements OF Mrs.
Truitt The violent struggle In The hall, the
falling to the floor with such force as TO dlslO-
cate the jaw, the hasty going Tor the doctor,
the operation of reducing the d1slocaton, the
subsequent struggle and viOlence in Mrs.
Truitts room Within sixty feet of Barrys
room, with the windows of both open, could
not have happened without Barry knowing
something OF il. That he knew nothing of the
visit of the doctor is OIIite recOnCilaDip with
the statement of both the doctor and the
plaintiff. II the testimony OF Barry Is wholly
discarded then the story of Mrs 1ruitt stands
alone in the midst OF many circumstances en-
! shrouuing it in cloud of doubt. II it is
cepted it overthrows the whole theory Of vio-
lence. Barry gives as reason for withhold
ing what he knew in the Police Court that he
was then reluctant witness and desired to
screen plaintiff, and freely admits that he
now is willing witness desiring to prevent
him from recovering heavy damages.
Ia my view after a careful examination of
it, his testimony, if it is accepted, and as he
is produced and accredited by the defendants,
1t must be accepted by them, is plain i'm
peachment. instead or cOrroboration of the
testimony OF Mrs. Truitt.
1t is contended on the part of the defend
ants, in the face OF all these circumstances and
many others OF like effect appearing in evil
dence which might be detailed. that the
charge made by Mrs. Truitt is nevertheless III
fact true. The contention, giving it its Just
weight, is no more than this: That the charge
may be true; that her situation was such as to
afford sufficient explanation OF the delay in
making the charge, and OF all the pecuiaritieS
of her conduct and relations with the plaintiff
between the time of the otfense and the COM
plant: that her want OF means and lack of
acquaintance and friends in Sacramento go
far to excuse her for tarrying in plaintiffs
house and other conduct so apparently lncon-
SiStent in one who had suffered such wrong as
she claimed to have suffered. With respect to
this, it may be said that 1t cannot be denied
that there is such q possibility. But can it in
reason be said that there is such probability
as to produce an abiding belief in the truth of
the charge? This must be answered IN the
negative. The facts do not produce belief
beyond a reasonable doubt, nor even belief
based upon preptnderat ng weight OF evil
denCe that there was an attempt made to COM
nit the Offense Much less does the evidence
support belief that the crime charged by the
defendants as having been attempted, was
actually committed.
1t is to be noted that the publication, which
was based upon the personal statements of
Mrs. Truitt made upon the 18th and goth of
August to several different persons, clearly
describes the alleged ofiense as an attempt ac-
companied with violence, but successfully re-
sisted, and that the charge. when it came to
be made before the magistrate on the after
noon of the goth, was distinct charge of
actual rape. The Justification having failed,
il follows that the plaintiff must recover dam
ages; and it therefore remains to consider the
defense made under the plea of mitigation of
| damages.
| The publication does not appear to have
! been made wantonly, nor without an en-
| deavor to ascertain its truth The evidence
satisfies me that the defendants believe the
| publication to be true. AT the time of the
| issue of the paper 1t was known that a war
rant had been issued tor the arrest of the de-
! fendant, upon the accusation made by Mrs
| TruItt. From the time on Friday afternoon
when the accusation became in O measure
| public, until Saturday afternoon when as be-
| fore stated, it was sworn to in tue Police
| Court, and warrant issued, the defendants
| through their reporter, inquired into, and, to
| as much extent perhaps as was IN their
! power, investigated the matter. They knew,
no vever, that the plaintiff denied the accusa-
ton and declared it TO be an effort to black
mail him, and they included the fact that he
so declared in the Iibelous publication. The
case does not show the existence of any ill
will on the part or the defendants, or that
they were actuated by actual malice. They
are however, chargeable with the legal malice
which the law imputes 10 wrongful acts. The
defendants, though believing the publication
to be true, also knew that the plaintiff dis
puted its truth. They deliberately assumed
the risk and the consequences.
While, in view of the fact that acting in
good faith and without actual malice, they
should not be subjected to vindictive dam
ages, they are yet clearly liable in compensa-
tory damages.
conclude that $500 is a just and proper
compensation. and therefore order judgment
in favor of plaintiff against defendants for
that sum. A. L. CATLIN, Judge.