The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1898-02-09
WEINSTOCK VS.. M'CLATCHY.
THE SECOND LIBEL SUIT NOW
ON TRIAL.
Plaintiff Introduces His Testimony
and Then Rests His
Case.

morning before Judge Hughes, hiram
w. Johnson and Judge Holl being at
torneys for the plaintiff and Elwood
Bruner and w. II. Nelson for the de-
PENDANTS.
Judge Hol said that he was going TO
make a motion in relation to the
amended answer filed by defendants,
which is very voluminous and attempts
to set UP justification and an attempt
at mitigation He would move to strike
out that portion of the amended COM
plant that relates to the attempt at
justification and the matters urged i'll
mitigation.
Mr.. Bruner opposed the motion, AS he
said the plaintiff had, when the case
was called expressly waived any irreg-
ularities in the answer and has had
plenty of time to file a motion. He
objected to being taken unprepared,
when plenty Of time had been given in
which to make the motion.
Judge Holl said that the plaintiff had
not waived the right to this motion,
but had stated that any objections to
the answer could be raised later.
Hiram w. Johnson said that in the
answer Were many pages of matter that
are entirely irrelevant to the matter
on trial. 1t was better to make this
motion now and determine the ques-
ton now than to present a sham plead
ing of twenty or more pages and argue
the question of admissibijty of evil
dence before the jury.
Judge Hughes thought the motion
should have been made some days ago,
so that the defendants could have had
notice of it in time to prepare for it.
Mr. Bruner said that the defense
should have had notice. The defense
was not a sham one, and even if the
motion We're granted it would have a
right to amend and the jury would
have To be dismissed for the present.
Judge Hughes said that the court
would much prefer to have all ex~
traneous matter stricken out, but he
did not think it would be just or fair
to grant the motion at this time, the
defense having had no notice. He,
therefore, would deny the motion.
Mr. johnson excepted, but proceeded
to address the jury and open the case.
He read the article from the 'Exami-
ner," which was copied and published
by the Bee" with added matter relat-
ing to WeinStock. He said that the ar
ticle was claimed to be lbelous per Sc
and did not require any innuendo tO
make il libelous. He would show them
that the reporter for the Examiner
did net interview Mr.. Weinstock and
many other matters showing that the
statements were false and libelous
Mr.. Bruner said he thought it would
be proper TO read the pleadings to the
jury. and Mr.. Johnson said he would
object to the reading of the portions
pleading justification and alluding to
the publishing of previous article by
plaintiffs and also that portion plead
ing mitigation.
The court oyerruled the objection, and
Mr.. Johnson excepted.
Mr.. Bruner then read the amended
answer to the jury
Mr. Johnson then offered in evidence
the Bee" of April IA, 1897, contain
ing the article complained of 1t was
admitted and he read the article to the
jury.
He also offered in evidence a deposit
ton cf l. w. Lees, Chief of Police Of
San Francisco. The defense objected,
on the ground that Mr.. Lees was on his
way to Sacramento and was already
within the boundaries of the county
Mr.. Johnson said that he had no knowl.
edge of the fact and it was surprise
10 him. Mr.. Lees is a resident of San
Francisco, and could not be compelled
TO attend the court.
Judge Holl wished note made of, the
fact that the deposition was offered at
five minutes to II o'clock. There was
no evidence, he said. that Mr. Lees was
in the county at that time, and IL was
evident that he was not in the court
and could not be.
The court thought the deposition
could be admitted, under the ruling OF
the Supreme Court.
Mr.. Bruner asked to be sworn, and
testified that Chief Lees had been SUBJ
poenaed and had sent word thar he
would come upon the train arriving here
at HOS a. m.
Mr. Johnson said that Mr.. Lees could
not be compelled to come and might not
come.
The court ruled that if Mr.. Lees was
not present at the hour of converting
at half past /, the deposition could be
read.
Judge Holl said that the statute says.
''if the testimony OF witness cannot
be procured That means that it can
not be legally procured. which is the
fact IN this case. as he cannot be COM
PEELED to come
Mr.. Johnson said that the case of the
plaintiff was brief and could easily be
presented and he was willing to have it
continued till half past one.
The court agreed TO the suggestion
and recess was taken till that time.
CHIEF LEES TESTIMONY.
When couyt reconvened Chief Lees
was present and took the stand He
testified that he met Mr. Weinstock
about the middle of April last and had
never known him until then. In his
conversation with Mr.. Weinstock the
latter made none of the statements
made In the article published in the
Examiner" and repubnshed in the
Pee" and Mr. Lees said Mr.. Weinstock
made no such statements
The questions of Mr.. Johnson were OBJ
jected to by the defense and the objec-
tons We're overruied. defendants taking
exceptions.
Mr. Bruner said that counsel for PLAIN
tin had stated the other day that they
did not make . point that the article
from the Examiner" was libel.
Judge Holl said that the article had
been made the basis by the Bee" of the
alleged libelous article and opposed in
mitigation OF the article and 1t was now
proposed by plaintiff 10 show that moth
ing in the former article had been fur
nshed by Mr. Weinstock or that he had
anything 10 do With IT,
Mr.. Johnson said the article in the
Examiner" was a matter OF indiner-
ence TO plaintiff. except that the Bee