The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-06-01


action of Islander predicated upon the
language used. The occasion gives ample
protection if the utterances are not ir-
relevant"
1t may be said that the defendant kilgo,
in his own defence, not only confined
himself to that which was pertinent and
relevant but kept himself within the
bounds of fair differences from the testi-
mony adduced on the investigation-that
of Mr.. Gattis himself and Mr. Peacock.
The language used by the defendant was
strong and caustic but no one can read
the evidence and the speech and rail to
come to the conclusion that the speaker
felt that he had strong provocation The
spoken words of the defendant Kilgo, then
being entirely privileged, it follows that
il there was actual malice in the pub
lication of them by the other DEFEND
ants, the occasion bein a privileged one,
as we have said, such malice must be
shown by other means than by indiner-
ence as to it's consequences to the plain
| tiff
His Honor gave another instruction at
the plaintiffs request, in the following
words: 'On the question whether there
was malice in the publication OF the
words complained of, you have right to
the circums tances attending it's publica-
ton" If the words of the libel are clear
ly malicious, that is, if they show clear
evidence of actual malice on their race,
they may be considered by the jury, as
in the case of Ramsey VS.. Cheek. 109 n
| c., 270. There the defendant wrote to
| the Superintendent of the Census about
| a public matter, an occasion of quail
flied privilege, and this court sus-
tanned the ruling of the court below in
having submitted to the jury for their
| consideration the words Of the libel Itself
because the words were evidence of NAL
| ice on their face There Cheek wrote OF
Ramsey, chat Ramsey was the leader
in defrauding me and Mr. Nichols out OF
| our elections last fall"
Where fraud is charged, the libel itself
may be submitted to the jury as evidence
| of malice. Adgers on Libel and SANDER,
| 225 There is no such evidence of malice
! in the language of the publication in the
| case before the court, and in that view
| the words of the libel ought mt to have
| been submitted to the jury. The only
| other grounds upon which the words OF
| the libel could have been considered by
| the jury was that the published speech
was much too violent for the occasion
| and circumstances to which it was APP
piled" or utterly beyond and dispropor-
| tionate to the facts" In considering that
view, a prior question is to be asked and
answered and that is, who is to deter
| mine whether the words of the libel are
! excessive and violent? Is it a question OF
! law for the court or is it a question OF
| fact for the jury? The answer is, 1T is
| a question for the court to decide. And 1t
| reduces itself to the bare inquiry wheth-
| er or not there is on the face of the words
| of the libel any evidence of malice that
| ought to go to the jury. In Townsend
| on SANDER and Libel, section 2SS may be
! found these words: THE facts being un-
| controyerted, the court is to determine
! whether or not the publication Is abso-
lutely privileged that of course deter
| mines the action. If the court decides
| the publication is cOnditionally privileged,
| then it is a mater of law for the court to
/ determine whether there is any intrinsic
! or extrinsic evidence of malice. If the
| court decides this question in the mega
| tive. it directs a non-suit or a verdict for
! the defendant without reference to the
iury." But the prior question is always,
! is there any evidence of malice to go to
! the jury?Adgers on Libel and SANDER
| 27g. when the Judge rules that the oc-
casion was privileged, then If at the close
/ of the plaintiffs case there being no evil
| dence of malice either on the face of the
/ libel itself or extrinsically, it is the duty
| of the Judge to direct non-suit or
/ verdict for the defendant" Forkards
| Starkie on SANDER and Libel, section 674.
| 1t NAV be a matter of difficulty in some
cases, for the court to determine when
the words of libel should be submitted
| to the Jury as evidence in themselves OF
malice In Adgers on Libel and SANDER,
page 280 the test is laid down in these
words: Take the facts as they appeared
/ to the defendants mind at the time of
| the publication, are the terms used such
| as the defendant might have honestly
/ and bona fide employed under the cir
| cumstances? If so, (there being no other
| evidence of malice) the Judge should
| stop the case" 1t is perfectly clear to
us that if in all cases of privileged COM
municatons the words of the published
| matter are to be submitted to the Jury
| for their consideration as evidence OF
| malice then the privileged occasion would
| be no protection whatever. A privileged
| communication and one not privileged
would stand on precisely the same foot
| ing if the words of the privileged one
| could be made evidence Of malice in all
/ cases. The tendency of the courts is not
to give the language of privileged COM
munications too strict a scrutiny. To
hold all excess beyond the absolute ext
| gency of the occasion to be evidence of
malice would in effect greatly limit, if
not altogether defeat that protection
which the law throws over privileged COM
| munications." Adgers on Libel and
| SANDER, 281. But where defamatory
| communication is published in self-de-
/ fence, although there may be some ex
pressions contained in it which go be-
| yond what is necessary for self defence,
| still it does not therefore follow that
they afford evidence of malice which the
! plaintiff is entitled to have submitted
| to a jury. To submit the language Of
/ privileged communications to a strict
| scrutiny and to hold all excess beyond
the absolute exigency of the occasion to
| be evidence of malice, would IN effect
/ greatly limit if not altogether defeat that
! protection which the law throws over
privileged communications. Quoted in
Forkard's Starkie on Libel and SANDER
! section 577 from the Judgment delivered