The San Francisco call., 1896-11-10
.HEBBARD'S FOES
ARE TO Be TRIED
Judge Daingerfeld Over
rules the Demurrer
of Williams.
All the Defendants Must Answer
to the Grand Jury's In
dictments.
IMPORTANT DECISION GIVEN.
Falsely and Knowingly to Impute In.
competency 10 Judge Is
Libelous

"Lots of people said the cases against
Judge Hebbard's defamers would be
dropped as soon as the election was
over, but they Will find out their mistake
before they get through" exclaimed At
torney Julius Kahn yesterday.
Judge Daingerfield had just delivered
his decision overruling the demurrer of
Thomas S. Williams Jr., who was recently
indicted with Benjamin Lucey, A. L. Cas-
avan, f. H. Qualman. George b. Conant,
E. f. Kendall and T. H. Mccarthy on u
charge of distributing and publishing q
libelous circular concerning Judge Heb
bard during the recent political campaign.
1t was agreed that all the cases should de-
pend on the decision OF the Williams case,
and the defendants must therefore stand
trial on the indictments for criminal libel
presented by the Grand Jury. Mr.. Kahn
is assisting the prosecution in these cases.
The decision OF judge Daingerfield is re-
far-reaching that has ever been rendered
in cases of this sort in California. Judge
Daingerfeld said:
The main ground of demurrer is that the
Indictment does not state ;acts sufficient TO
constitute public offense. The indictment
alleges, among other things, that the prose-
cutting witness was Judge and a candidate
for reelection as such; that the defendant
malicio usly accused him of being an unfair
and therefore unfit person for the position of
Judge, and that the defendant then and there
we'll knew that the alleged defamatory matter
contained in circular to voters. signed by the
defendant and others, and pleaded by copy IN
the Indictment, was false. The charge that
the prosecuting witness was an unfair person
is one of the averments of the circular.
This is ali equivalent TO accusing the de-
fendant of knowing that the prosecuting wit
ness was a tafr person, and al the same time
maliciously charging him with being an un-
fair person, in his capacity as Judge and can
Idate. For the purposes of this demurrer We
must assume the Indictment to be true, what
ever the facts may be. The words of the cir
cular have a clear tendency to injure the
prosecuting witness in his Office or calling of
Judge, for fairness is of the essence of the
judicial temperament and character. Falsely
and knowingly to impuie incompetency 10 q
Judge is ibelous. dodgers on Libel and SLAM
1t seems that whatever would be deemed de-
famatory in a civil action for libel will be SO
375-390]
Newell in his work on Defamation, SANDER
and Libel" 939 says without citing authori-
ties, that .The test whe ther words civilly
libelous are criminally libelous seems to be
that whenever a party must plead special
damages in order 10 recover in a civil action,
no indictment can be sustained, because a suit
for damages offers an adequate remedy"
This criterion does not seem TO be sound,
for, as 0dgers remarks, supra, $50, 'Tnat
there should be q criminal remedy as well as a
civil remedy is clearly necessary, for most
libelers are penniless and a civil action has
no terrors for them. The plaintiff will never
get his damages. In fact, as 1T appears from a
recent case. The proprietor of many low news
pa per rather eioices at the prospect of civil
action for libel being brought against him. He
regards it as u gratuitous advertisement Tor
his paper, calculated TO increase its circulation
in these degenerate days"
Furthermore, the textbooks say that the orr
gin OF the criminal proceedings was the neces-
sity of preventing breaches OF the peace by
legally avengfng provocations Tor such q
breach
To say or write of a man anything likely 10
arouse his ire is generally slanderous or libel.
ous If it affects his reputation.and If it is un
privileged.
Judge Daingerfeld quoted further from
! Odgers to the effect that not only the in
jured party, but the community also is
interested in seeing that those libelers
who can pay damages shall not on that
account escape all liability of imprison-
ment from the fact that the libel. however
wanton, has caused special damages only
The court added that it is we'll settled
| that, except in certain cases of absolute
privilege not necessary to discuss, privi
legged munication loses its privilege
when it is intentionally false.
Another allegation in the circular was tc
the effect that Judge He6bard appointed
to responsible position Ibis bosom
FRIEND" certain person mentioned a.
! notorious" and "political parasite. u
The court holds that to say OF man that
he has notorious person for bosom
friend is TO injure the man in the estima
tion of all people who have not that kinC
OF bosom friends.
/ In view of the facts and the law as ap
| piled by the court the demurrer was over
ruled. and the trial of the case was set fol
the 13 h inst.