The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-10-29

Ienge TO the board was rejected, that Mr..
Jurney said Il am a Izilgo man, i told
the District Conference at Rockingham
I yesterday l was coming here to fight for
Kilgo, that l should fight for him with
my fingers and with my teeth, and when
my teeth gave out, ! would gum it for
him." that Judge Montgomery nodded
and consulted with DR.. Kilgo and referred
him to Greenleaf on Evidence, and that
DR.. Kilgo's conduct and behavior when
cross examining the witnesses including
the plaintiff, were overbearing and Of
fensive, and brutal to the plaintiff.
Especially should his honor not have
allowed as evidence that part of the chal-
| lenge TO the board, which is in these
words: Il have been pronounced in my
views against the illegality of trusts, and
l have concurred with the resolutions Of
the Western North Carolina Conference
against the sale and manufacture of
| cigarettes, and l stand here by the terms
of yonr invitation in Benefactor's Parlor,
Dukes Building, room thus doubly la
beled with the reminder of the cigarette
business, the influence of whose vast ac-
cumulations is like the darkness of Egypt
in that it cannot only be seen, but can
be felt This institution ilsclf becomes
partner in that very business by be-
ing the holder Of a large block of its
stock from which it derives no small part
of its income"
His Honor also allowed a witness for
the plaintiff to state that DR.. Kilgo DUR
ing the investigation locked the door Of
the room against correspondent of one
of the daily newspapers of the State; and
another witness to state ttat +ust before
the trial commenced, and as he got up
to the building, in the shade on the
grass, Mr.. Oglesby and DR.. Kilgo were
lying on their stomachs with their heads
close together and seemed to be in an
interesting conversation
How that evidence could be considered
as going to show malice in the publca-
ton of the defamatory matter on the part
of the defendant Kilgo, We cannot see;
but it was allowed also to be given in
against defendants Odell and Duke.
His Honor enormously admitted evi-
dence as to special damages suffered by
the plaintiff, and the loss of gross profits,
and individual customers (sixth, seventh,
eleventh, twelfth and thirteenth eXcep-
tions) also evidence OF the church men,
bership of Duke Oath Ex); also evil
in the parsonage of the Main Street
Methodist church, Durham, Doth Excep-
tom, the plaintiff having been allowed to
show that the defendant Duke belonged
to that church, that the stenographer,
Newsome, was the private secretary OF
DR.. Kilgo (27th Exception); that Oglesby
was pastor of Main Street church. Dur
ham, Oath Exception); the defendant
Duke having been shown to be mem
Der of that church; upon the character
Of the plaintiff as a minister of the gos-
pei (66th Exception); evidence that there
was published in the Morning Post large
number of supplements to that edition
containing nothing but the speech of DR..
Kilgo, no evidence having been given as
to the knowledge or consent of defend
ant to such publication Exceptions 76,
II, IS, 79. so. 127. 1879.
1t must be remembered that the great
question in the case was whether or not
there was malice on the part of the de-
PENDANTS in the publication of the defam-
atory matter. for His Honor held as
matter of law that everything that oc-
Cured before the Board of Trustees wa~
absolutely privileged, and he also told
the jury that 'if you believe the evidence
in the case, the publication complained
of by the plaintiff was one of qualified
privilege" His ruling of law is in these
words: "At the close of the evidence the
court in the presence of the jury, ruled
that it would hold as matter of law
that everything that occurred before the
Board of Trustees in connection with the
investigation of the charges, including
the trial, was absolutely privileged, and
could not be considered by the jury as
any evidence of malice or the falsity or
the publication, nor on the question OF
damages, and that the evidence as to the
folders or supplements was ruled out.
He had discovered then before argument
was commenced that all that mass or
damaging evidence. that we have men
toned as having been admitted concern
ing the matters which had occurred be-
fore the Board of Trustees; but he al
lowed the argument to proceed and to be
concluded uDon the very matters when
he had said to the counsel. in presence
of the jury should not be considered by
the Jury After the argument on both
sides was closed, His Honor undertook
to withdraw from the consideration OF
the jury, not only the incompetent evil
dence concerning the Investigation be-
fore the Board of Trustees which ne al
lowed. but also the other Objectionable
evidence which we have above referred
TO- 1t may be best to quote The Ian
guage of the court in reference to the
attempted withdrawal of the evidences
1t is as follows: Mote Y-At the
close of the argument and before charg-
ing the Jury His Honor stated to the
Jury as follows: The court charges you
that the pamphlet introduced by the
plaintiff is not evidence to be considered
by the Jury in showing the falsity OF the
publication complained of for malice
The court withdraws from your conSid-
Grafton and instructs you that you mus
not consider in making up your verdict, or
in any wav in this case, any OF the 1ol-
lowing evidence: The testimony or the
plaintiff covered by the 9Th exception
and that part of the eth exception in
brackets: the evidence covered by the
18th. 18th, 18th and 14th exceptions, the
10Th exception, the 28th exception and the
Gath exception; also the evidence cover
ed by the Goth exception, nth, 18th and
10th exceptions, and the questions and
answers between the 18th and 18th ca
ceptions, and one question and answer
before the 77th, and the three succeeding