The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-10-18

when requested to tell how
long he has been voter and
give other details with reference to his
citizenship he asked leave TO withdraw
the answer in which he said he is
voter. He then admitted that he never
voted and was never naturalized AL
though he has been in this country up
wards of ten years. Little swore that
he Is sole owner of the Scrantonian.
NJ. j. O'Toole when on the stand dis
claimed all responsibility for anything
that apears in the Scrantonian. He is
only a salaried employe whose busi-
ness Is to gather and write news. lie
never contributed anything to the ed
itorial columns Of the paper and never
wrote anything abusive about Colonel
Ripple for the paper. In no way is he
financially interested in the Scranton
ian, he said. In fact, he was moved
to go to the Scrantonian for SIS a week
when he had been getting s17 week
from the Times while acting as its
city editor.
MORNING SESSION.
When court opened yesterday morn
ing, Attorney John T. Lenahan, of
counsel for the defense announced that
he had something further to offer in
the way of an argument on the ques-
tion of admitting evidence with view
to justifying the libel which was be-
fore the court at adjournment Monday
afternoon.
He read an opinion of Judge Living
| ston, of Lancaster county, to show that
in case along somewhat the same line
| that Judge allowed all the facts to go
to the jury and permitted the jurors
| to decide whether or not the article
was a proper one for publication, be-
cause it is matter of fact and facts
are for the consideration of the jury.
He cited another authority as saying
that while the court may be better
! qualified to interpret the language of
the libelous article, it is nevertheless a
| question for the jury, because it is one
Of fact
Mr.. O'Brien, in reply to Mr.. Lenahan,
read an opinion written by Judge End
Itch, of Berks county, discharging a
rule for new trial in a libel case in
which there was a conviction. In that
case it was decided that the question
of privilege is one for the judge alone
and that the new constitution clearly
intended that. Otherwise. conditions
would become so intolerable as to make
the law of libel a by-word. This de-
cision was afterwards affirmed by the
Supreme court, Mr.. O'Brien also main
tanned that the law of 1897 made it the
duty of the court to decide what con-
stitutes a privileged communication.
Mr., Lenahan said they did not con-
! tend that in every case the court is
| compelled to admit such testimony, but
! in matter of such interest to the pub
| lie as that of the case at issue 1t is a
! question for the jury to decide. He
| contended that the testimony ought to
| go to the jury for two reasons; first,
| because the libel was matter proper
| for the information of the public. and
second, to rebut the presumption of
malice. Judge Edwards ruled that the
| communication was not a privileged
! communication. 1t was not within the
protection Of Section Z, Article 1, of the
declaration of rights contained in the
| constitution of Pennsylvania. In order
| to make such a communication a privi-
| legged one it must refer to the official
| conduct of a man in q public capacity.
! or to some matter proper for public in
vestigation and information.
NOT PRIVILEGED.
The article complained Of did not pre-
tend to discuss the official conduct OF
Postmaster Ripple, nor did the evidence
| disclose any circumstances tending TO
show that the matter was proper for
! public investigation or information.
| Under the circumstances and the evil
dence in the case, the court ruled that
| I'M I oipD lon,
legged one and not entitled to the pro-
lection Of the constitution. The court
also held that the decision OF this ques-
ton was for the court and not for the
! jury.
This ruling was called forth by an
offer made Tuesday by the defense to
prove that the allegations contained in
the libel were true as a matter of fact.
They would have been allowed to do
this if the communication was priyi-
legged, but not coming under that head.
| the law would not permit the defens9
to even attempt to justify what they
said.
The judge said, however, that while
evidence would not be admitted as
bearing upon the question of iusti6ca
| tlon, he would allow a good deal of
latitude in the admission of testimony
that might be offered with a view 70
rebutting the inference of malice.
John j. OGrady of West Scranton.
VINO was on the stand, was then in
terrogated by Mr. Lenahan. The de-
| iense asked that ne be allowed TO tes
! Ily Tor the purpose of showing that
the article in question was published
on information furnished by O'Gradv
| ana others and was made in good faith.
pelieving it to be true. This offer was
OBJECTED to by the commonwealth.
MR.. KELLY's ARGUMENT.
Mr.. Kelly said that the presumption
! of legal malice cannot be rebutted.
THE article is a libel per se" Mr..
Kelly continued. THE court has so
held, and whether or not there was
actual malice is a matter we have no
! concern with now. The fact that il Is
hpelous and not privileged under the
constitution allows legal malice to he
! inferred and 1t Ia the duty of the court
10 so instruct the jury. If man couls
! go on the stand and testify that there
was no malice when he penned de-
tamatory article, no matter how lheI-
Gus that article was, If the Jury he
heVed him that would end the matter
! ana there would be no protection for
| regulations in this state, l DEFY the
| gentlemen to show a single authority
| III pennsylvania or any other state
| Where man who wrote an article that
| is llpelous per sc was allowed TO prove
that there was no actual malice. The
moment legal malice is infarra5 -,