The record-union., 1896-03-24

all untrue.
"Fourth-The averments in defend
ants third answer by way of defense,
in substance that plaintiff unlawfully
and feloniously assaulted one Estella
Truitt, with intent to commit the crime
of rape upon her, are not proven beyond
a reasonable doubt nor by a preponder-
ance of evidence, and are each and all
! untrue.
"Fifth-The publication was not made
because of any personal illwill of de-
PENDANTS, or of any of them, toward
the plaintiff; but it was malicious in the
sense which the law imputes because it
was not true, and was defamatory, un-
privileged and injurious.
"Sixth-The defendants at the time of
the publication believed it to be true.
though it was not true. Such belief
was based upon false story reported
to have been related by one Mrs. ES-
tella Truitt, on Saturday morning,
August 20th to neighbors of plaintiff
at a house near his residence. A re-
porter of the defendants went to said
house and found there the said Mrs
Truitt and three or four other women
with the reporter of another paper and
the Chief of Police of the city of Sacra-
mento. At this conference the re-
porter of the defendants obtained his
information as it was given to him in
part by Mrs. Truitt, but in the greater
part by the other women present
From what he thus heard he wrote
the article complained of, except that
portion known as the headlines" and
submitted it to the defendants, who
directed it to be published if a war
rant for the arrest of plaintiff upon the
| complaint of Mrs Truitt should be
issued. The plaintiff having been in
formed by another reporter of the de-
PENDANTS of the proposed publication,
went to the defendants some hours be-
fore the publication and declared the
story to be false, and protested against
its publication, because, as he said it
would injure him. The warrant was
issued about O'Clock, and the publica-
tion was made in the third edition of
the paper at about 4 o'clock. The affi-
davit upon which the warrant was is
sued was made by Mrs. Truitt, and
charged the defendant with having
committed rape upon her person, in the
J city of Sacramento, on the 11th day of
| August, 1892, but did not otherwise
state any of the circumstances or de-
tails of the alleged offense.
| "Seventh--The averment contained in
the fourth paragraph of the third di-
vision Of the answer pleaded in the
mitigation for the publication of the ar
ticle complained Of that said Estella
/ Truitt made the statement in sub
stance as contained in said publication
concerning the plaintiff TO the Chief of
Police at his office is not true, but it is
true that at the residence of Mrs
Kelly, a near neighbor of plaintiff she
did state to said Chief CT Police that
said plaintiff had committed a rape
upon her. The averment in said para
graph that said publication was in all
its substantial details correct and true
is not true
Under these findings the court award
| ed plaintiff, who was merchant carry
ing on business in Sacramento, the sum
OF $500 as compensatory damages.
BY far the greater part of the argu-
ment of the appellants is devoted to an
attempt to show that the published
matter was privileged either under sub
division of Section AZ of the Civil
| Code, or under subdivision of the
same section.
These subdivisions are as follows:
! Section At, G. C. "a privileged publi-
cation is one made: Sub. f. BY a fair
and true report, without malice, Of
| judicial, legislative or other public Of
| fetal proceeding, or of anything said in
the course therof'
Sub. ). In a communication, with
out malice, to person interested there
| IN, by one who is also interested, or bv
| one who stands in such a relation to the
| person interested as to afford a reason
able ground for supposing the motive
innocent or who is requested by the per-
son interested to give the information. !"
Here it should be said that the de-
/ tense of privilege is one which to be
availed of should be pleaded. And there
was no plea of privilege in this case
| Goodwin VS.. Daniels, SO Mass 81:
Langdon VS.. Haggerty, 80 Wis. $50:
Bell VS.. Parke, Ir. C. L. Rep. ABB
But passing this objection, we proceed
to the consideration of the contentious
which form appellants chief reliance
! The first of these may be disposed of
briefly. The publication is not and does
not purpOrt to be report of a judicial
| legislative or other public official pro-
| ceeding, or of anything said in the
course thereof. 1t is no more nor less
than its headlines represent, "a damag
ing tale against Sacramento mer
| chant" the materials for which were
gathered by the reporter, as the court
/ found, partly from Mrs Truitt. but
principally at second hand from the
neighborhood friends and gossips
Moreover it was not fair and true as
the court further finds. 1t may have
| been true report of what these
women told the reporter, but that is not
the truth which will justify a publisher.
| II A says B is a thief, and publishes
the statement that A says is a thief.
in a certain sense this would be the
| truth, but not in the sense that the law
means. IT would constitute no defense
/ to c, for it would be but a repetition by
him of scandalous charge. His de-
fense must consist in showing that in
| fact B was thief
| The claim that the publication was
privileged under subdivision 3 of Sec
tion AZ of the Civil Code rests. as coun
sci for appellants phrase it, upon "the
fundamental postulate that in this
State whatever every citizen has right
to know, that a newspaper has a right
to print and publish
The freedom of the press is most care
| fully protected by constitutional safe
guards. Congress shall make no law
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