Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1897-03-17
privileged communications and that they
Were NOT lthploSis

.
| Now say to you as matter of law that
| II they are true in fact, substantially, and
they We're charges against the plaintiff
Tor misdoing IN his official capacity as a
deputy sheriff, the defence Is completed.
The rule would be different against n pri-
i vate individual. Ii the charge is mall
| feasance. in office. criminal neglect or
wrongful acts while in the discharge of
| duties as deputy sheriff, and the state
ments are true. the defendants are iusu-
| lied in publishing 1t and the plaintiff
would not have cause of action.
Now upon this issue the burden of proof
| is upon the defendants. If you find that
the articles published were In themselves
libelous the defendants come in and say
they would be excused from a suit of libel
| because they are true. They assume the
burden of proof. and they must establish
| to your satisfaction by a preponderance
| of all the evidence in the case, that they
We're true. If they have failed to do that.
why they fail upon that branch of the
| defence.
Now the only direct testimony on that
subject | believe comes from Foster Mel
son and McNally. There is apparently
no doubt that Nelson has made the
charge that he paid IS to Mentally. and
that McNally proposed ii. accepted it and
suffered him to go. Mentally says that it
is not true; that there was nothing OF
the kind that occurred; that he did not
suffer him to go; that there WAS no pro-
| position for payment and nothing paid,
| and that the whole thing Is tissue Of
| l
| direct evidence you have in the case upon
| the one side and the other. And if the
| two witnesses Were entitled to the same
degree of credit stood exactly equal be-
| fore you. so that you could not tell
whether one was to be believed as against
1 the other or the other as against the one
| the thing was held in equipose. then the
| defence would fail. because they would
| not have proved it by Il preponderance.
| their evidence would not outweigh the
| evidence upon the other side. and tho
party who has upon him the burden of
proof would therefore fail.
Are there any circumstances in the case
| bearing upon this question of truth?
| WE'LL it is argued to you, and you must
judge of the weight of all this, that at
| the time of the escape the circumstances
| We're such as to lead men to believe that
McNally had connived at escape. or con-
| scented to it. You heard considerable ar
| Sument and many suggestions in regard
| to Nelson going out back of the barn
and for what purpose and the circur-
stances attending it. and everything con-
nected with it. and that some people there
seems to know who said it-but to say
that it was putup job. On the other
| hand. McNally gives you his statement of
how the escape occurred, how he happened
| 10 be out there,an all the circumstances.
and YOU will judge whether that is
| natural and truthful or not And as
bearing upon it you should take into ac-
count McNally's efforts afterward to Sc
|
| seQuent success. whether his efforts in
that direction indicated that he had an
original disposition to let him escape. or
| whether he was intending, in good faith
as officer. to discharge his duty and to
bring the man who was supposed to be
| an offender. and was ultimately proved
such, to Justice. 1 believe that is sub
stantially all there is upon the question
of the truth OF the charge. If you ind
they we're true. your verdict should be
for the defendants. If you find they W re
not true. or not proven to be true b. Il
preponderance OF evidence on the part of
the defendants. then you proceed to the
other, and perhaps the more important CT
more difficult question in the case.
| Now ii is not claimed that these defea-
dants personally had any knowledge of
| the facts or made any previous examina-
ton or enquiries to ascertain their truth.
They We're here in Augusta attending to
| the publication of their paper, and so far
as | am aware-and YOU must judge from
the evidence and not take il from me
| they do not appear to have had any
| knowledge whatever about Nelson, or
about the proceedings or about Men ally
or to have made any enquiries or done
anything at all in regard to 1t. but pub
| lished what was sent them by McCcne.
So that the position of McCone becomes
important here. his relation 70 these de-
| PENDANTS and their responsibility for his
| acts. And / give you the rule of law as
/ understand it. One of the defendants
says that McCone was employed as re-
porter for them regularly and had charge
| to some extent of the financial business
of the defendants; that letter OF Me-
Nally of Oct 18th, denying the charges
was turned over to McCone for inVestt-
cation. and that the defendants relied
entirely upon him. You will cmembel
the testimony. Now if you are. satisfied
that McCone was entrusted by the defen-
dants with the duty and authority to eN-
anime and report facts, and they relied
entirely upon his care Judgment and dis
| erection in the matter and published what
, he wrote without question or eXamlna-
; ton by them. then | instruct you that IN
der the circumstances the defendants are
responsible for what McCone wrote. with:
in the scope of that employment ana
which the defendants inserted in theii
s fully as if wri Aoa BY 2nS
-, in writing either or all of the articles
, was actuated by malicious motives IN
: tending to defame and injure the pl1in-
: tiff or if without such malice he fur
nished the articles printed by defendants
in their paper of Oct. 18th and Oct 2lsi
4 and Nov Attn. or either of them. without
: sufficient cause to believe the charges tc
| be true. or not believing them to be true
4 or with reckless disregard of the plain
G | tiff's character and rights, and the ar
t ticles or either of them are in fact libel.
e Gus, the defendants are responsible fol
a his malice or negligence to the same eN
n tent as if it Were their own; That is
$ | they put McCone practically in he'll
n | place and ne became their agent for this
i | purpose. and whatever was his state OF
o mind connected with this, or his acts OF
: | pressed in the writing published by tbs
: | defendants the defendants are RESPONSE
& bic. to the same extent as though GOV
o | Burleigh or any of his associates hac
. | written them.
y Now it is not necessary that you should
- find that every charge is true. that every
= ! part of these articles or any one of then
!, | was libel. There are several counts ii
. the writ. If you find them all libels, o.
anyone of them a libel then the plain
:. tiff would be entitled to recover, unles!
y one or the other of the defendants JUST
" fications shall prevail. If the charge:
Il against the plaintiff Were honestly be
i lieved to be true by McCone. and tina
II belief was founded upon informa tioi
II from such reliable source would jus
ii | tify belief, and he had made diligent en-
IS quiry at proper places and of proper per
It sons to ascertain the facts. and as Thu
& result of such investigation and informa
!. ton McCone wrote the articles, in goo,
re faith. for the information of the people
l. without malice, and in that belief. and il
o like good faith the defendants inserted
n them in their Journal. the defendants ar
t not liable, notwithstanding they may no
20 be true. With these elements combined
Il to furnish basis for the articles tn
IS writing and publication, although sub
"a sequent upon investigation it should turf
~ out that the charges are not true the.
" still are privileged publications for whicl
- | no action would le being allegation
,e in regard to a public officer in his rela
,,f tons to the public and his official duties