The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-06-25
A TRUSTEE OF TRINITY COLLEGE
VAINLY TRIES TO PROVE.
INCONSISTENCY.


The News and Observer of Sunday,
June 18th, entitled Nothing is settled
until it is settled right there is a
severe arraignment of the Supreme
court O. vigorous dissent from its for
mer decision in which certain purely
legal questions were decided in the
case of GattiS VS.. Kilgo, and a criticism
of the defendants and their attorneys
of their conduct of the case recently
tried. And especially Is their conduct
arraigned because forsooth the attor-
neys for the defendants at the conclu-
ZION of the PLAINTIFFS testimony made
the motion, which is recognized as
proper ky courts of every country
where law is administered, to dismiss
the action upon the ground that there
was no sufficient evidence to warrant
a verdict against the defendants, or
in other words, that the plaintiff had
not made out case against the de-
PENDANTS. One would suppose from
the character of this editorial that
there was no precedent in the courts
for such a motion. For the editor says
that 1.-The supreme question i'm the
case to be passed upon by the Supreme
court is, whether the right of trial by
jury is TO be fairly continued in North
Carolina when one of the slitigants is a
millionaire, or whether it is to be con-
fined to ordinary litigants. That is
the way it looks to the lay mind.
An examination of the Supreme
court reports of this State since
Punches, Montgomery, Douglas and
Cook nov all happily retired to pri-
vate life, quoting again from this
editorial. will disclose very many cases
in which none of the litigants was
millionaire. and wherein the courts
have sustained motions made by the
defendants at the conclusion of the
plaintiff testimony to dismiss the &C
ton upon the ground that the plain
tiff's testimony did not make out
case against the defendant. | venture
the assertion that if the editor of The
News and Observer will attend the
next session of Wake Superior court
he will witness the acquittal of many
defendants too poor even to employ
counsel upon the ground that the evil
dence produced by the solicitor is not
sufficient to warrant conviction. and
he will frequently see the judge upon
his own motion. at the conclusion of
the testimony for the State, direct
verdict of acquittal.
There is a case pending now in the
Superior court of Guilford county,
which should be somewhat familiar
to the editor of The News and Obser-
yer. 1t is the case entitled wv. ii. Os-
borne VS.. NJ. T. Leach and News and
Observer Publishing CO.. 1876 \. c.,
1876 n. C. Report, 629. l quote from
the opinion of the court rendered by
Clark. Chief Justice. This is an ac-
ton for libel against NJ. I. Leach and
The News and Observer Publishing Co.
In the trial upon the merits at the
close of the plaintiffs evidence the de-
PENDANT Leach moved to dismiss the
action. -. AS to the other de-
PENDANT The News and Observer Pub
fishing Co. the court allowed the mo-
ton made to dismiss upon the ground
first, that the plaintiff had not given
it the notice required by chapter s551,
Laws 1901; second that the plaintiff
had not made out a case against IT.
Judge Allen granted the motion of
The News and Observer Publishing
CO.. and dismissed the action. So here
is case in which The News and OBJ
server Publishing Co. was charged With
the publication of a libel upon an
honorable and highly respected citizen
of the State, who enjoys the confidence
and esteem of all kho know him. Was
he not entitled to nave a jury pass
upon his rights9 And to use the Ian
guage of the editorial referred to.
Can this litigation be fairly settled
by real jury trial where all the evil
dence is given to the jury. or by judic-.
not Col. Osborne make the 50 me in
,quiry of Mr.. Daniels who thus far has
succeeded in securing a judicial de-
NAL of such a trial by jury. Again
Mr. Daniels says: THE great mistake
made from the first by tie attorneys
for Mr.. Duke and DR.. Kilgo was in
determining to keep out evidence or
the plaintiff. refuse TO offer evidence
tending to Justify the course of the
nd efrha
the jury instead of trying to evade
a jury trial of the case upon its merits.
There are many men who believe that
Mr.. Duke and DR.. Kilgo ought to pay
NOTHING in damages. who believe their
case would have been stronger If the
defendants had gone on the stand, ana
made clean breast of the whole af-
fair giving their reasons and their
justification for the course pursued
That's the way to try cases like this
let all material evidence on both sides.
with explanations of motive. go to the
jury, after argument by counsel, ana
that is the only way that COMFORTS
with the spirit of our judicial system.
When The News and Observer was
charged with the publication of libel
upon an honorable citizen of the state
the editor did not go upon the stand
and make a clean breast of the whole
affair, giving his reason and his j1sti-
fication for the course he pursued. In
stead of pursuing this course which
Mr.. Daniels says COMFORTS with the
spirit of our judicial system. he sits
quietly by, offers no word of expla-
nation or justification for the publica-
ton of the libel, and through his
counsel moves to dismiss the action
for the reaaon that the plaintiff had
net made out case against him.
Surely when this editorial was writ
ten all recollection of the case of Os-
borne VS.. Leach had faded from his
memory, or perhaps Mr.. Daniels had
come to the conclusion that the right
of trial by jury is to be confined only
to ordinary litigaDts. and that the edi-
tor and the millionaire arc alone eX@
empt from its privileges and burdens.
i. F. BRUTON.
) Wilson. y. c., June "a.
[CoI. John F. Bruton, who essays
to convict The News and Observer of
Inconsistency. is a member of the
Board of Trustees of Trinity College.
This paper may be guilty of incon-
sistency. but no member of the board
which tried. convicted and sentenced
Judge Clark in proceeding that has