The San Francisco call., 1897-04-23
CHARGE OF LIBEL
MAY Be DISMISSED
Samuel M. Shortridge De-
fendS Editor Frederick
Marriott.
Defective P. eadings and Slender
Shew of Proof in the
Case.
Decisions of High Courts Indicate
That Candidates for Office May
Be Freely Criticized.

Last Wednesday the attorneys LOT the
| prosecution introduced only one witness
| to prove the charge against Mr. Marriott.
The only witness offered was w. S.
| Drey polcher, who swore that he read the
article complained of: that he supposed
| Mr.. Marriott was the owner of the News
| Letter, because two years ago he spoke OF
! it as my paper; that Judge Hebbard
was at that time q candidate for 1e-eIec-
| ton, and that all this occurred in the City
and County of San Francisco.
On this showing Attorney Julius Kahn
rested the case for The prosecution. the
| District Attorney and half dozen depu-
ties acquiescing, not choosing 10 call any
other witnesses to show that any damage
had been done TO Judge Hebbard or that
any libel had in fact been published.
In presenting his motion for dismissal
of the charge against his client, Mr.. Short
ridge said that he would rely on the as
| sumption that If the law exists as he be-
| lieves 1t to e1is the court would find it
| to be not only its sacred duty, but sacred
| privilege of the defendant to stop the trial
at this point and instruct the jury that no
case had been made out by the prosecution.
In that event the accused must go
hence freed from any imputation of
wrongdoing. The motion to dismiss
would be based on these points:
First-The evidence ooes not prove that the
defendant was the author OF the article COM
planned OF, or the editor or proprietor OF the
| News Letter on october 81, 1896.
Second-The evidence uoes not prove the
fss6 fSj.'S''0H u 'Hs A''eseu iiOst Oh OCTOBER d.
Tnird-The evidence does not prove public
| offense, misdemeanor, 10 wit, libel has been
! committed by the defendant.
! Fourth-Tne evidence do,s not prove that
the defendant pu blished the alleged libel on
the 3lst OIL October, 1896, or tany other time.
Fifth-The evidence does not prove that the
| defendant has published anything which has
| exposed J. Z. B. Hebbard to rid cule contempt
| and hatred. The Criminal Code requires the
use OF the word "or" instead of and" Mis-
! use OF this word has universally been held 10
vitiate charge of this kind.
/ Slxth-The evidence does not show that the
defendant published any thing that impeached
| the honor, virtue and reputation OF J. G. b.
Hebbard, the conjunctive being again used
| instead OF the disjunc tive, as required by the
| plain letter of the law.
| Seyenth-The evidence shows that the Ian
| guage alleged TO be criminal libel is am
| biguous-so ambiguous that it is susceptible
OF different construct IONS some of such con-
structions being of meaning SO innocent
that they would not injure the reputation OF
| any person.
Eighth-That the evidence does not over
| come the presumption of innocence which the
| law throws around the defendant
NinIh-The evidence does not show or prove
that j. c. B. Hebbard has been in iured either
| in his private capacity as citizen or in his
ofticial capacity as magistrate.
that the article complained OF is a libel.
The attention of the court was, py Mr.
Shortridge, drawn TO the fact that no
proof of ownership had been adduced that
there was nothing to show that Judge
Hebbard had been injured; that where an
article Is ambiguous, susceptible of two
interpretations, then the innocent inter-
pretation must be accepted, because the
law raises up u presumption of innocence.
All these and other technical points were
urged, but Mr.. Snortridge bestowed on
those matters but a brief notice, passing
on to d full consideration of the broad
questions OF public olicy, which he said
were presented in this attack on the free
dom of the press.
He joiced that he was in a court of
law and justice, where subjects are TO be
weighed carefully and where the idle
gossip of political campaigns is not to be
accepted as proof OF crime. He submitted
that all the paid proof offered by the
prosecution in the attempt to fasten on Mr..
Marriott the charge of libel was utterly
insufficient. He argued that the proof of
ownership of the News Letter would not
have established the title to load of
hay. 1t has been universally held that
proof TO sustain a criminal charge must be
much clearer than would be required in q
| civil action.
Touching the question of public policy
in sustaining the freedom of the press,
ties to show that when a man becomes a
| candidate for office he challenges the
| criticism OF the entire Community. and
that he must endure whatever is said In
good faith by his fellow-citIzens; that in
fact any expression of opinion in this re.
gard, written or spoken. is privileged
com m munication.
One of the cases referred to is entitled
Briggs VS.. Garrett, and is reported in No.
Ill Pennsylvania State Reports, page 404.
which shows circum stances somewhat
| similar to those in the present case. The
! sylla bus contains the following:
| liza respectable citizen honestly believes and
| states that a candidate for public Office is
| guilty of official misconduct or is a person of
i'll repute in the sense that it affects his fitness
| Tor the office which he seeks, such a statement
! is privilege and may be repeated by another
in meeting assem- bled to inquire into the
| lutely false and upon inquiry its falsity
| might have been ascertained without being
| liable in an action for libel; for the voter has
the right to canvass and discuss the qualifca-
| ttons of the candidates who seek his suffrage
| openly and freely.
The syllabus further set forth that " her
| a comm munication is made in good faith
| the law does not imply malice, and that
| actual malice must be proved.
In the case referred to Judge Briggs was
| a candidate for reelection to the bench,
| and Mr.. Garrett read a letter saying that
"the Hart Creek sewer steal of 5000 900
was only MADE possible Dy JuOge Briggs
| charge to the jury" In deciding the
matter at issue the Supreme Court OF
| Pennsylvania said:
When Judge Briggs accepted the nomination
4 as a candidate for reelection to the judicial
| position which he then filed, he threw out a
| challenge to the entire body of voters of the
| county OF Philadelphia TO canvass his qualifi-
| cations and fitness for that position. That in
| volved in the fierce light that beats upon the
| throne" not only his official conduct for the
term just closing, but generally his fitness for
the position of Judge. In this may be included
| many things beyond mere legal knowledge.
| man may be a learned lawyer and yet be
| wholly unfit for judicial station. There may
| be faults of temper, mental idiosyncrasies and
| such manner of walk and conversation in
| private life as people jealous of the reputa.
| ton of their judiciary would never tolerate.
In conclusion the same court made this
| declaration:
In the enfor cement OF all general rules there
| Will always be OF individual hardship
| But this is the sacrifice which the individual
| must make Tor the public good.
Mr.. Shortridge said he admitted that in
| the present case some hardship might fall
| on Judge Hebbard in being deprived OF