The record-union., 1898-02-10

charge of assault that he was laboring
under an insult or an injury just COM
mitted on him, but such defense cam
not he made after some time has
elapsed
Mr.. Johnson here interjected the re-
mark that the former article must also
bear some close relation to the alleged
Ibelous article, or, in other words, be
part OF the res gestae.
Mr.. Holl then read from "Sunder-
land on Damages" in relation to the
position he had stated in regard to lapse
of time and mitigation. He also read
from 4th Wendell. n. Y. Reports, p. 553
Beardslee VS.. Maynard, where several
weeks had elapsed between the first
publication and the lbelous answer,
and stating that ample time had
elapsed in order to allow the feeling ex-
cited to have calmed down, and for
reason to have operated and the de-
fendant to have decided that it did
not belong to him to redress his in
juries in his own way, and quoting the
maxim, ''irae furor breva est
He also read from 7th Wendell, n. Y.
Reports, p. $50, Maynard VS.. Beardslee,
the names being reversed. in which the
same doctrine was laid down.
The witness and jury having been
excused, the remainder of the morn
ing session was passed in the reading
of authorities by Judge Holl in one of
which the court decided that the prior
article could not be set up in mitigation,
as it bore no relation to the article COM
plained of by plaintiff, and also that one
day had elapsed giving defendants an
ger time to cool, and that the publica-
ton of a written libel gives opportun-
ity for reason and reflection as to the
injury received.
LAPSE OF TIME A FACTOR.
When the court reconvened in the
afternoon, Judge Holl continued his
citation of authorities. Citing from 12th
Wendell, N. Y. Reports, p. II. Gould
vs.. Weed. to show that previous publ
cations could not be admitted in miti-
gation unless so closely connected with
the article complained of as to be con-
elusive that they We're written while
under the influence Of passion.
Taking the Examiner" and Bee -
he said he would read the article, the
rerusal of which had caused the pro-
creature comforts and sit down immedi-
ately TO compose the libelous article
complained of. This inoffensive article.
he said, mentioning Mr.. Weinstock' 5
visit to Chief Lees, it was claimed, had
so excited their passion to such degree
that it was urged in justification, or at
least in mitigation, of the libelouS arti-
cies. The Examiner" article he said,
only stated facts concerning the Bees"
alleged expose Of a combination which
had been repeatedly published in that
paper, and was well known to the pub
lie, as we'll as Won Arnold's connection
with the Bee They assumed that
Mr.. Weinstock had furnished to the
Examiner" the information that the
Bee" itself had given in it's columns.
The defense also, he said, claims in
mitigation of its article that Mr.. Vein
stock had twenty-four days before pub
lished a letter in the Record Union, ;"
which had excited their indignation, but
the authorities he had quoted show
clearly that such letter could not be
urged in mitigation, owing to the lapse
of time. Moreover the letter of Mr..
Weinstock had no relation to the libel
Gus article, which was no explanation of
it, and was clearly dictated by malice.
He claimed therefore that they could
not give any testimony in mitigation in
their answer of their libel, and the
law as quoted by him would not allow
of the introduction of any such testi-
mony in mitigation. Nor had they
proved the special charges they had
made against Mr.. Weinstock, who had
done nothing "es a shield and protec-
ton to boodlers and blackmailers." They
must have shown that the specific
charges made are true, but they have
not done so.
MR. METSON DISSENTS.
Mr.. Metson thought that the plaintiff
had shot rather wide of the original
question. He claimed that defendants
had made the justification as full and
broad as the allegations. The plaintiff
had in his complaint simply stated that
the article is false, defamatory and Ii
belous. and the defense had answered as
broadly and generally. He claimed
also that the rules had become of late
years broader and broader, and less
bound down by multiplicity of techni-
calities.
He quoted from the decision of JUS
tice Field in the 9th Cal. Reports as
quoted by Judge Holl. and claimed that
the answer had been sufficient denial
of the allegations in the complaint, and
as broadly as stated and plaintiff s
remedy would have been q demurrer. In
all the authorities quoted by counsel for
plaintiff he had sought to adopt the
principle that justification availed not
unless it covered all the special points
in the charges. but the rule of the
court is now changed.
He would insist that they, having
claimed in their complaint that the
whole of the article was false. defama-
tory and libelous. cannot demand that
defendants must specify all the points in
their answer Mr.. Weinstock had
caused to be printed in the Record
Union letter. calling the McClatchys
lihelers and other unpleasant things,
and bought up a large number of copies
and distributed them broadcast. in or
der TO produce a prejudice against de-
PENDANTS He went to San Francisco
and interviewed Chief Lees and the
Examiner reporter. as they supposed.
for the purpose of spreading his state
ment through the State and discrediting
their principal witness. Having been
the first to inaugurate newspaper war
by his statements, he cannot, Mr.. Met
son said complain if he is attacked in
turn. He quoted from SD Virginia, p.
121, Chaplin VS.. Lynch, saying that, be-
ing a newspaper fight it was parai-
lei case, and that in that case the plain
tiff was allowed to plead a prior article
in mitigation. That is what defendants
wish to do. They wish to plead it IN
mitigation, and also wish to plead that
the article is true. There is in the ar
,icle complained of a reference to the