New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1895-06-25
A DECISION FOR MR.. DANA.
JUDGE BROWNS OPINION IN THE MOVES
LIBEL CASE.
THE DEFENDANT DISCHARGED on THE GRouN
THAT 1rprI. IS NOT A CRIME IN THE DIS
TRICT OF COLUMBIA AND NOT

decision the libel suit instituted ps Ram '''
Noyes of THE Washington Star" and director
OF the Chicago Associated Press against Charles a.
Dana Editor Of THE Ncw-York Sum- The de-
cison is in favor of Mr. Dana on all points anu
tho application for Mr. Dana's removal to WASH
ington under an indictment found by the Grand
Jury Of the District OF Columbia on March
last is denied and the defendant discharged
on March Mr. Dana held by Commissioner
Shields In this city upon the Indictment mentioned
William VI. Laffan manager OF The sum- was
included In the Indictment. but was at the time alb
sent from the country. Application was mode Tor
the removal OF Mr.. Dana to Washington there 10
be tried. the allegation being that Noyes had been
hcled in Washington
The indictment contained three counts FIRST
that The Sun Printing and Publishing Association
New-York corporation. engaged In the publ
cation Of Tho Sun: that Mr.. Dana was the re-
sponsble editor Of the paper: that Mr. lanan was
the manager thereof: that in their respective ca
pa cities the had composed and procured Tor
publication editorial articles in the paper. ana the
other had published and sold. In various places,
among them Washington. the issue or the paper
containing the matter complained of. and entitled.
''rhe Work OF Rascals" The other two counts
are Of the same purport substantially. They make
no reference the publication OF the paper In New
York or to any acts Of the defendants In New-fork
but aver that the defendants did. "at the District
OF Columbia write and publish, and cause and pro-
to he written" etc
In ton was deliberately argued before the District
Court with the result of the denial OF tho applica-
ton
JUDGE BROWNS DECISION
In his decision. which is Ions. Judge Brown
says:
The Indictment charges that the alleged libel was
fut the facts stated in the Indictment. and the
slight evidence taken before the commissioncr, are
10 with the publication OF '"The sun of February
q containing The aessd hGeou' ae' c wnn
by his counsel that he cannot be removed 70 Wash;
states CONSTITUTIONS which require IN. ,riai oi u.
tenders to be had In the State and district wherc
Of libel howevcr authorizes an Indictment whore
the nbclious matter has been circulated through
the common law authorities justify the contention
OF the prosecution. that II the accused within onr
Jurisdiction has agencies In motion for me
purpose OF procuring the circulation Of The libel
ious matter IN another juri.dlc,ion Inc 0',h honrh
he was not physically present Their cha,
Nv ,,nf .h nf 30 Ts mcr ' the omence is COM
mi,,el Is 70 be construed according 10 the technical
common law rue existing Al the time ne 'on-
stu'ion was adopiea in ne more p9par ony
to the pace where the Defendants own acts wer.
done IS mootei question when DO not ma /"
The commitment was made and removal Is asked
upon no evidence o. crim.nality. or OF pI9bAui"
District OF Columbia. As applications FOR removal
upon indictments found IN other districts are ~,
50 Important tha am eons,ramed 10 CIV, ,,,i
careful auen.pn n H., law NO. preyions acau"s
cence IN II can justify rs continuance when p,np.
personal liberty.
THE POINTS INVOLVED.
Two points are involved. viz Whether the In
dictmoni IS admissible a, al foundation f'r
commitment under section i.ol' Of the Revised
Statutes. AMI. 4 admissible. IT. eject and eon'ii-
sivcn.ss on the question Of probable cause" There
IS statute 81 the United states ffrciy aHc'""s
these Questions.
After an exhaustive citation OF authorities and
prccedcn,s upon these points. judge Brown rays
There is express provision either By CSrsr',,
eject Of an indciment found IN amo,hsr Siu,e OF
though In California a State statute II said TO MAKE
such an Indictment legal c'ilenc", u Wou''. J.
the guilty Would often escape before the necessary
proof could be secured II 10 issdlng an oiast "l
considered by the magistrate. Hut compln nis on
Information and belief are 10 be closely scinin'z,1
signed as an AFFIDAVIT or depofiuo1 u - IA
reality. charse, an accusation. = r r ~
signed to rut the defendant on irial mourn Pre-
sumoi to cmbody the material facts proved be
fore The Grand Jury Is not necesSary o2nnnel
iorn Sy' as legal accus@on il is not formally
sarily stated AZ they were proved before the Grand
jury. Legal differences ar" often stated a. facts
nsT OIL h leys ncton The dimer"n counts are
supposed 10 relate 20 different offences. the law
toleratcs such Inconsistencies ana even contradic-
siltu.e perjury An Indictment that appears on i,s
face TO be Of this character must be Judged ny rs
is Contradictory on material points II becomes
worthless as an affidavit cf facts however per
feet as a pleading. and such Indictment IT,
therefore insufficient as a foundation FOR removal
proceedings.
THE INDICTMENT ~ THIS CASE
such think. Is the Indictment in this The
main questions involved make It material to
Z, mt tys init TOD
here and what, II any. In Washington. There Is
no denncn..'s or certainty In the essential state
men,s in this regard 49, respects Mr. Dana lie
denies INA. any ac,s ., im.s hat yr Dana wrote
the libel In Sew-York: the second and third counts
cnu. aai IL To- be written. in Washington The in
dlctmont in the first count alleges circulation ana
alleges a prior publication Of the same nhc IN
NcwYork does not dt,iney SegS any ssb
| ngton The ayerment Of publication there by MI
Indictment cannot be treated as e1uiVa.'m,, % a..
complaint on ol,h, or II 50 uen,ed ~o onrrsdic
| tons 4 magistrate could not act upon an ainlavt
Of that character and hence 1t cannot serve ~ ne
necessary legal bas" Tor proceeding ""''' wv
''i'' am equally satisfied that libel in the District OF
co Dir' or provided for by The Thiry,thrd
sse'en Of nc jndcary h aSn r Sr it.
II is plain ina, the judiciary act ava not foh' en-
irct Of ' columbia In the Federal system there
are no commonaw crimes II was cary an ~ E~
that even libel against the Government or us ON
! cers could no, be punished crim!naily without
statute therefor.
not a REMOVABLE OFFENCE.
There has never been any statute cither OF III"
| United States or OF the State OF Maryland max
Ing Nbcl an original offence or dehnlng us PUNISH
ment The present Indictment rests wholly upon the
| old common law Of Maryland and upon the act OF
Congress OF February q. 1901 accepting the cess'on
| OF that district. and providing that the laws OF
| Maryland as they now exist shall be and continue
| In force" except modified etc.
Continuing Judge Brown says that. assuming 'hat
| ,ihel IN the District OF Columbia IL a criminal Of
fence though that point IL also disputed IL ~ new
ertheless "A purely local offence. and he Is also OF
| the opinion that the District OF Columbia court In
| which the Indictment found IL not a court OF
the United States but merely a territorial court
lie further declares that for various reasons. which