Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1897-03-15
ARGUMENTS IN FULL
OF Mr. Heath and-Mr Mcclellan in Case
Of George R. McNally vs.. the Journal.
Mr.. Health, Argument.
May it please your Honor and Gentle.

men OF the Jury:
deal Of your time. still. you have followed
the testimony with "a good deal OF pa.
thence. 1t Is one that may require coun.
sci on both sides perhaps to ask for !;
good deal more. OF your patience on ac-
count of the multitude Of issues tina,
there are in 1t and the obscurity, perhaps
! might say. OF a good many principles
or law that are involved. There il
scarcely a class of cases that can come
before the court that has in it more law
that it is difficult even for us LAWYERS tc
understand than these libel cases. Much
OF our law of the present time has beer
modified and made clear so that juries
called out of the various walks of life
and unused to legal terms, have no diff
ncuity in easily grasping and applying
them BIZ the court. OF course. gentlemen
the legal education that you get here you
must get rapidly rs the charge IS given
py me court; You only hear these rules
OF law stated once. always stated by the
presiding justice with clearness. and nee
essarily with briefness. And because you
get 1t in that way | say that when you
approach a case like this where the law
is obscure and where terms are used hav-
ing different meaning from the terms
we use in ordinary life. IL makes IL diff
, ns,i for jurors to apply readily the rule
cult for jurors when II Is equally as diff
hcult for counsel.
These cases Eo along in a peculiar way
49, wat the pl,tllliiI has 10 90 III the tlrSt
instance. as you see was done In this;
case. Is to come in and prove the publi-
cation of the libel and to show that the
article that lie complains OF was pub
iished. The law gives him n right to stop
there. and II throws upon the defendants
the burden of then taking. up the matter
and showing that they had some iusti-
ncation for publishing the article and
mat Is what We have done in this case.
That justification we foreshadowcd In the
pleadings that you heard read. which
you may cail perhaps in plain language
the defendants answer. and you will
recoilect that in that answer We said that
we claimed we were not responsible in
damages for publishing these articles. be-
cause We had two grounds on which to
justify ourselves. The first was the
truth. and that under our law is a COM
plete justification. unless the plaintiff
runs. that the publication. although true,
originated in corrupt or malicious mo-
tives. 1t Is a statutory rule of law in
this State that you cannot publish the
truth about a person II you do il cor
ruptiy or maIiciously.
That expression ''corruptiy or mali
ciously. as ii is used there in the stat
ute has well-settled meaning in this
State. You will hear "a great deal from
the court and in the arguments about the
word malice used in an entirely differ
ent sense. which l viii! come to later.
But the word malice as it is used in that
can prove that particular kind of malice
he has right to recover. no matter
how true his statements might be-that
word malice there has a well defined
meaning that will not confuse the mind
of any juror or lawyer. for ii il; the
word malice as We use it in the ordinary
affairs of life. That is to say, if news
paper publishes an article about anybody.
and then comes into court and proves
ii to be true, if the plaintiff can then sat
isfy jury that the editor of that paper,
or whoever was responsible for the publ
cation. put even the truth in his paper
out of spirit of hate and illwill. with
wicked intention actually to hurt the
man, doing it spitcfully, wickedly, and
with that spirit of illwill and real hate
then l say the truth is no protection to
the newspaper.
] do not propose to spend any time on
that part of the case. because you must
be abundantly satisfied that there was
no spirit of illwill. no spirit of hatred
upon the part of the two Burieighs. Mr..
Fiynt Mr.. McCone or the Associated
Press agent at FoXcroft. They have al!
gone upon the stand and have testified
that there was no such feeling: that they
were simply writing up and publishing
these items as matters of news. None
of chem knew Mentally. None of them
had ever had any trouble with McNally.
None OF them had any relations
with McNaI1y. either friendly or
hostile. To them he was nothing
but a plain officer of the law
abo6t whose acts they were writing what
they believed to be facts. although later
on shall have occasion to comment on
one little piece of testimony which Nc
Nally has put in here which is SO pal
pably false that it hardly requires COM
ment. u strained attempt to show some
malice between him and McCone. |
think / can say broadly. appealing to
your sense of fairness and of candor.
that if you ind these statements to be
IN no Of 81 ttf In,
plaintiff to recover damages even against
the truth when he can show that the
publication originated from an actual
spirit of hate, cannot possibly apply here.
Now to pass beyond that.
This right of action for libel which is
given by the law and which is but rarely
resorted to in our cOurts--for I believe
in 20 years of practice in this county,
this is the second case that have known
to be tried-was intended to apply in
cases where the character. or reputation.
which amounts substantially to the same
thing. of the plaintiff has been actually
injured. and that is the. burden of the
which, with its cumbersome
the plaintiff has set out In
the quaint language of the law in his
writ. He says in his various counts that
he was q person of good repute and of
good character. and that he had in his
the reputation of being IL man
of moral worth and of good character,
and that by reason of these publications
his reputation among his neighborS and
among the people that know him has
been hurt. Now that is what he is here
for. You are not sitting here at the ex-
pense of the county as a moot court.
simply to try out the bare question of the
truth of this charge of lack of good faith
of the Burleighs in inserting it. You
have been summoned here as the repre-
sentatives of the people by Mr.. McNally
to say how much, in dollars and cents.
his reputation in the town of Clinton and
his neighbors, has been hurt.
There are three elements that go to make
up verdict in libel case but one of
them has not been invoked and probably
will not be. If the jury find under the
pleadings as they are in this case that
the statements in these articles are libel
Gus. and they then find that the state
ments are not true, and also find that
they were not published in good faith.
then the law presumes. what the judge
will tell you to be nominal damages. l
say that up to that point If the plaintiff
can satisfy you that these articles were
libelous, and then we have failed to sat
isfy you that they were true. and have
also failed to substantiate the second part
in good faith. with reasonable ground to
believe them to be true. then the law
comes in and says that the plaintiff must
have at least nominal damages. For
damage juries sometimes as
sess one cent, sometimes one dollar, it is
which. Such verdict as
that would mean, first. that you were
satisfied that the articles were libelous:
second. that you were satisfied that we
had failed to prove their truth; third,
that you were satisfied that we had failed