The record-union., 1898-02-10
DAY PASSED IN ARGUMENT.
QUESTION OF JUSTIFICATION
AND MITIGATION.
Ex-President Leonard of the
Board Of City Trustees Gives
His Testimony.

The trial of the Weinstock MeClatchy
case was resumed yesterday morning
before Judge Hughes.
Elwood Bruner opened the defense,
addressing the jury He called their
attention to the pleading made in the
answer, stating that the defense con-
tended that the allegations made in the
comments on the Examiner" article
were true. 1t also contended that the
article was in self-defense, the first law
of nature. He alluded to the first dam
age suit and the various publications,
and said that the defendants never con-
rected Mr.. Weinstocks name with the
charges. He was stated to be connect
ed with the scheme of the proposed pa
per, but it was not stated that he had
taken part in the scheme. The mat
ter had however, been brought to his
attention. The article does not say
that he is a shield TO the wrong -doers,
but that ''he appears before the COM
munity to be shield'' for them. He
would show that Messrs Leonard and
others called on Mr.. Weinstock in rela-
tion to the proposed paper, and that he
refused to have anything to do with it,
but finally promised to.
He claimed that Mr.. Weinstock pub
lished in the Record Union" a SANDER
Gus and libelous letter on the same day
his complaint was filed in court; that he
went to San Francisco to try to break
down the evidence of the principal wit
ness for the defense, and spoke of his
case freely, in order to create sympathy.
lie claimed that the article in the EX-
aminer" was copied and commented on
by defendants in order to Offset the ef-
forts being made by Mr.. Wenstock to
create sympathy for himself, and that
the defendants had never in their arti-
Giles connected him with the charges
against others.
JUSTIFICATION ARGUED.
Charles E. Leonard, former President
of the Board of Trustees, was the first
witness
He was asked by Mr.. Bruner if he at
any time had any conversation with per-
sons other than Mr. Weinstock in De-
cember. 1896.
Mr. Johnson objected, on the ground
that the question was incompetent, ir-
relevant and immaterial, and issue
might just as well be made right here
as to this line of testimony.
Mr.. Bruner changed the question to
one as to whether witness had any
conversation with Mr.. Weinstock re-
garding the paper.
Mr. Johnson said the question was
whether they were to try this libel or
the case tried before his honor last fall.
If the defense was going to justify itself
by facts involved in the other case, the
plaintiff has the same right as last fall
TO prove the former articles false. IT
the whole matter is to be tried by justi-
flying the former articles, the plaintiff
had a right to present testimony on all
the articles.
Judge Hol said that the questions in
dicated the line of defense, which was
outside the rules governing the trial OF
libel cases. While defendants are al
lowed to plead mitigation and justifica-
ton under fixed rules, this is going
outside of those rules. The defense is
allowed to plead justification and allege
that the statements made are true in
mitigation, but the defense in its an
swer falls far short of the rule.
The whole matter in the article is not
charged to be libel, but the article does
contain what was ruled by the court tc
be libelous when it overruled the de-
1nurrer. The sting and the libelous
Part of the article is that which says Mr..
Weinstock lis i'll advised when he ap-
pears before the public as a shield and
a protection for boodlers and black
mailers" Here he was charged with a
felonious action. Even if the defense
confines itself to the justification of this
paragraph, 1t is not a defense to al
lege that il is true, but they must pre-
sent clear and indisputable proof that
the allegation is true. The defense is
bringing a long series of grievances be-
fore the court, and saying that because
81 feels aggrieved ii is therefore justified
in publishing the article. 1t complains
of Mr. Weinstock's letter; il is not
averred anywhere in the answer that
Mr.. Weinstock at any time appeared as
the shield and protector Of boodlers and
blackmailers.
AUTHORITIES CITED.
He read the law relating to justifica-
ton which states that it must go the
whole length of the article to be justi-
fcation and point out the special points
in which the justification is made. The
justification must be as broad as the
allegation made. He read from Town
send on Slander" long list of instan-
ces where the proving of part Of a
charge was not justification of the
whole of it, The same doctrine, he
said, is laid down in Newell on Defa-
nation. Slander and LIBEL and he read
at length from that work to the effect
that me presumption is all in the plain
tiff's favor and he is not required TO
prove the charges false. Other authori-
ties were quoted. TO the same general
effect. one being a decision in the Ninth
California Reports. in Thrall VS. Smi-
ley in which a new trial was moved
for on the ground that the court would
not receive any evidence in justification.
The court decided that the defendant
should have proved the truth of the
averments, instead of simply proving
something that tended towards prov
ing them. A similar decision is found
in the case of Mowry VS.. Roby, S9th
Cal. Reports.
In the case in hand, also, he said,
what the defendants have set up in
justification of the alleged libel, they
have also set up in mitigation. II is
claimed that the defendants wrote the
article upon impulse on reading the
Examiner article and that they went
without their lunch in order to do so.
Whatever there might have been in Mr..
Weinstock's article Of March. twenty
four days elapsed before the publication
of this article. Whatever complaint
they might have to make of that ar
ticle, can they complain that this ar
ticie was written under impulse and
that his article under tha; lapse of time
was stu grievance that was ranking?
~ man may plead in mitigation Of a