Daily Kennebec journal., 1897-03-15

the suspicfUus circtln1sfancess connecfcd
with that escape which were thon known
10 the proprictOrs Of the ,kcnncl,cc Jour-
nal and more than that. the fhdt that
George McNally. had told three dlHetent
stories up to that time. gave them right
to say that In determining In their minds
the question Of the probability as to who
was telling the truth, George McNally or
Nelson. they had right to say that the
probabilities were with Nelson bad as he
was for down to that time Nelson had
told but one consistent story, while Mo-
NaIly had told conflicting stories. Me-
abusive letter. which mas been put In
here. which showed his absolute want OF
truth when he prnhed that letter by
charging inni1 like Payson viies with
hiring reporters TO Islander him. He had
put In that letter the bare-faced false
hood that Payson Viics did not search
that house. He had put into that letter
untruthful statements, and the kenncbec
TO the probability Of the truth even b.
tween Foster Nelson. bad as he IL. and
this man McNally. who has told conflict
ing stories who has allowed this man to
escape under circumstances which he as
NJ sworn officer cannot Justify. who out
Of insane Jealousy has gone out OF his
way to maliciOusly attack n man OF the
character OF PaysOn viles: repeat they
had right to say that the probable truth
was with Foster Nelson. In determining
whether the editors Of that paper were
cautious or not, you are to put yourself
In the position the newspaper editor was
at that time. Take what facts he had.
what reliable information he had and
see how II looked to him at that time.
not how 1t looks now: see how II looked
10 him then. They had upon the one side
roster Nelson. outlaw, wicked as he was.
but with n consistent statement: they
had on the other side George McNoily
with these contradictory stories which
required explanation and which were cor
rupt in some way. No doubt about that.
gentlemen. That was not an honest es-
cape. believe that you will find that
the truth lies. as matter Of fact that
rhe truth lies. with the proposition that
that escape was not honest. Not only
was 1t true that the escape was not
justified In believing that 1t was
not honest but II did require rs a mat
ter of fact an explanation. ard weighing
the facts at the time. ! say tnat n rea-
sonablc man had right to ac; as We
did. OF course. gentlemen. II Mr.. Bur-
leigh could have known as he now knows
that McNally had no standing I'm his own
town and was absolutely without char
actcr or reputation up there. he would
have been abundantly justified In believ-
ing the articles of his reporters. but Mr..
Burlesh. OF course. did not know II at
that time. He took the facts as they
probable cause for believing that the
probable truth IL with Nelson rather
than with McNally.r He has tied him
self all up with contradictions. For some
reason he grossly and negligently allowed
this man to escape. So much- for that
count. The fourth count contains that
Associated Press dispatch. and added to
II an extended interview with Foster
fifth count. as l understand IL. is only
repetition of the fourth in the daily. SO ,
that the testimony as TO the third. fourth
and fifth counts would be simply the
Saf he third N, ha in
serted the Associated Press dispatch.
where IL says. Foster Nelson says tina
he paid $ to MeNally." and in the
fourth count n repetition of that and
then also n second statement of Foster
Nelson to precisely the same thing. and
the iifth count repeats ii all with varying
headlines. or course the headlines are of
no account. The statement under the |
headlines makes the aggravation. Now. |
gentlemen. that contains, of course. a
pretty bald charge against McNally. 1t |
IL II good deal worse than the first count, |
because il is a direct statement of thej
bribery of deputy sheriff by a criminal |
whom he held in custody: and plain |
violation of the statute. There can be
no doubt about it being a libel.
Now. We come in with these two de- |
fences. First: truth. and If you fail 10 |
lind the truth. second. probable cause to |
believe il to be true. Well. gentlemen, all |
that l have stated in regard to our justi- |
fieation by inserting the Associated Press |
uiSpdttI WOuiu apply anu WIFI kTtttef L
force upon our repeating it a second time
when Foster Nelson for the second time |
gave this interview to our own reporter
at the Skowhegan Jail in the presence of |
Mr.. Viles. Foster Nelson has gone on |
and sworn that it is true. George Nc |
Nally says 1t Is not true. To impeach |
Foster Nelson YOU have various records |
of interesting crimes of various degrees |
that he has committed. Well. gentlemen |
upon the truth of that proposition it is |
Nelson against McNally. 1t strikes me |
that McCone's reputation for truth for |
criminal record is not involved in deter |
involoved in this case at all, save on one
proposition. on the question of express |
malice which will come to later. About |
all there is in this case about the truth of L
that he paid him s.. l am discussing now /
the truth. McNally says he did not. Now.
it is a question of which one do you be- |
licvc. do not know. gentlemen. how |
but l think l should say in all fairness
and candor that If 1t was put to me to /
decide which one of these two men
would believe the quickest. Foster Nell
son or Mentally. In the light of this case |
should not know which one to believe.
Upon that issue of truth my brother viii |
tell you that the burden of proof Is up /
on US. that is. II you are to base your /
verdict entirely upon the finding as to l
whether it is really true or not that Fos-
ter Nelson did pay George McNally $.
You have simply Foster Nelson on
that question of truth arrayed
against George McN:tlly. and 1t
would be a difficult matter / say In all /
fairness to decide which one of those men /
is SO morally constituted that he would l
the easier drift away from the truth.
There is one thing about it. Foster Nell
son is contradicted by one William
Cooper who is brought in, and there are
two or three other Cooperesaues. wit
nesses of the same grade and character.
that are brought in as to the question OF ]
how much money Foster Nelson had at |
that time. / don't believe. gentlemen. |
you will be much troubled in your mind |
by the amount of weight of credibility |
that you will give to Bill Cooper or any /
of that gang. 1t really comes down to the |
direct question insisted upon by Foster
Nelson from the very first and lie has
never been shaken in any interview, has 1
never been shaken even in the most rigid
cross examination, his very statement
that he did pay it and you have the
equally direct statement of George Nc
Nally upon the stand that he did not re-
ceive it. No man knows where the truth /
lies between those two men save NelsOnl
and McNally. Now. upon that PROPOSE
ton / am going to be entirely fair. say
that IL that was submitted to my con-
science to determine I should not know
which one of those men to believe. The
difference between the two is that Nelson
is in prison and McNally is out. Nelson
is a convicted criminal but criminals will