The record-union., 1897-10-08

der of the Court overruling the demurrer
establishes, so far as the points involved
are concerned, the law of the case, | still
believe that the Court is justified, and
for that reason | have listened to eX-
tended arguments upon the subject, IN re-
viewing such particular ruling of the
Court. 1 say that if l had presided on
the hearing Of the demurrer and had
overruled it, as was done in this case, and
at the trial of the case the same propo-
sltion was presented to me as presented
to me at this time, and at the same time
/ believed that my ruling at the former
time was ineorrect-that l would now
take the responsibility of overruling the
former conclusion which L had enter
! tanned Therefore, as l said before, L
have listened to this argument and con-
cluded to pass on this motion on the suffi-
cheney of the complaint in the action;
In passing upon the construction to be
placed upon the matter relied on in the
complaint, as well as the entire article, l
believe the rule to be as stated by the
Court in the 114th California, in the case
Of TOnini VS. Cevasco. The Court there,
after quoting the statutory definition of
libel, which it is unnecessary TO repeat
! here. thus lays down the rule:
This definition is very broad. and in
cludes almost any language which upon
its face has a natural tendency to in
/ jure a mans reputation, either generally
! or Win respect To MS OCGUpdllOil
On page 213 is defined the word "ob-
! loquy," which says among other things,
quoting from a decision from the 10Th
Cal, what the word 'obloquy'' means:
ITO expose one to obloquy is to ex-
pose him to censure and reprOach, as the
latter terms are synonymous with the
word obloquy.'
In other words. in order to enable the
/ Court to say that the article in question
! is not libelous it must say it is not such
an article as would entitle the same 70
/ go to the jury because it does not hold
/ the plaintiff up to cenSure and reprOdcn.
| Now. without going into 4 minute eonSid =
/ GRAFTON of this article, it is deemed SUI
/ ficient to say, without taking the article
/ up in detail and discussing it, that the
/ fourth averment therein, which is in the
/ following language, THAT a combination
| has been formed of the Trustees re-
ferred to. who counted also on j. q. Davis
/ for support, with John A. Sheehan of the
| News and II. Weinstock to control the
coming fall election and furture patron
/ age of the city, must be construed IN
( such q manner as to hold that there is
I therein made a charge that there was a
combination between the Board OF Trus-
| tees-that is, al least, portion OF the
| Board Of Trustees referred to in the sec
ond paragraph Of the charge-and John
| A Sheehan and The plaintiff
But in this connection | will say that,
/ SO far as the manner in which the charge
/ is made, that is the entries in the pocket
/ book and the documents therein lndl-
Gated that is laid under the opinion OF
/ the publishers, as cOnIenQeU Dy the Oe-
| fendants-that it makes no difference. l
am of the opinion that if newspaper
publisher should publish an article, for
| Instance like this: That John Doe
! charges Richard Roe with beinga black
/ mailer and a thief and a scOundrel, and
that we, the publishers, do not believe a
word of such charge, Notwithstanding that
/ John Doe stands highly in this commu-
nifty etc; we think the charge is absolute
| ly false; that there is no truth in 1t at all
| 4 do not believe that statement of that
/ kind would inStifV SIph a publication. IN
/ other words, that when newspaper pub
fishes an article, it is charged with re-
| sponSibility for the truth of the article,
| and whether it states it as its belief or
| its opinion, or whether it states its con-
| clusion or opinion-it is not true, it is not
| justified, in order to excuse the ofenSe
| if the article is in fact libelouS. In other
words, the definition Of libel as laid down
/ by the Code, is the publication Of any
| thing which tends to inJure man in his
reputation; and no matter how the pub
| Usher may word that article, no matter
whether it is laid as the opinion of the
| publisher or otherwise, if the article does
! tend to do what the Code says he shall
not do, then the article is ibelouS. This
conclusion makes il unnecessary to go
| into detail, but even If do go into detail
and discuss this article, there is point
which L referred to in Section and also
the last clause in the complaint, both of
which, in my opinion, am unable to say
are such as do not hold plaintiff up to
| injury to his reputation; and entertain
ing that view the motion for the nonsuit
Objections were made to certain ques
tionS-a number of questions propounded
pounded to the defendant V. S. Nc
Ciatchy-while on the stand as witness
for the plaintiff The proof attempted
to be established by those questions goes
charged in the complaint. l intimated
to counsel on yesterday afternoon that it
was my impression that it was admis-
sible, but a careful review of the author
tiles which have been cited and a thor
ough consideration of the proposition
lead me to this conclusion, that while
undoubtedly evidence of malice may be
| introduced by the plaintiff in his case in
! chief, / am inclined to doubt his right
to introduce evidence of the falsity of
! the article. He certainly can introduce
/ such evidence in Tebuttal, and it is evil
! dent TO the court in the case at bar that
! such an opportunity will be granted in
| this case, and for that reason, at this
! time, the objection will be sustained. This
| is deemed sufficient to inform counsel of
the position of the court upon the ar
tiele. At this time the court does not eX-
/ press, does not intend to express, its
| opinion. upon the proposition Of whether
or not the article is libelous per Sc. Some
/ mention has been made in the argument
! of counsel upon this proposition and a de-
sire was expressed that that question be
passed upon at this time, but it is deemed
! . advisable to pass upon it when granting
the instructions which may be requested
! by either party.
The jury was then called into court
and Mr. Reddy asked for a recess hour
| in order to prepare the defense and
see what it would be, and whether any
would be made. He would also pre-
| pare his instructions and submit them
to the court.
The court granted the recess asked.
When the court reconvened in the af-
| ternoon Mr.. Reddy announced that the
defendants rested right there.
The court asked what arrangements
counsel wished to make in regard to
arguments and what limitation, if any.
/ Mr.. johnson said that, as the case
was so much nearer a termination
than had been hoped for, he hoped there
would be no limitation. Mr.. Holl also
| hoped there would be none, and said
| that counsel had been arguing for two
ldays. and the court might be sure that
there was such thing as counsePs be-
/ coming exhausted.
J Il have not seen any evidence OF H.
replied the court, amid general laugh.
The argument was opened by Judge
Holl. who addressed the jury, saying
that the plaintiff wished to open up the
whole matter most freely. The action
is brought by a man who thought his
character had been injured and de-
| fsrnad nv the article published in the