The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-06-16


that defense had opened the door TO
this line of testimony. and that the
plaintif could in reply show the de-
tails of the business. This. OF course.
was an attempt to get in the testimony
as to special damage ruled out on the
previous day
Judge Winston justified his questions
as being in rebuttal of the idea OF
malice which the Supreme Court had
cut out, except as TO the fact that de-
PENDANTS had stopped trading
Judge Moore held that while evil
dence as to the character of the bust
ness was competent, the plaintiff
could not show the volume of business
done.
Witness stated that the two book
stores were possibly a hundred yards
apart. Mr.. Gattis was still colporteuT
Of the Methodist church after he left
The Ramsays did not do the kind Of
business that Mr. Gattis did. The
Ramsays did the retail business Mr..
Gattfs had gone out of. Mr.. Gattis
still sold Sunday school stationery.
The PIaintiT Rests.
The plaintiff here rested.
Have the defendants evidence"
asked Judge Moore.
I'VE have a motion" replied Judge
Winston.
The jury was excused until ,
! o'clock. and Judge Winston went OUT
after authorities. returning after a few
minutes and took up mis- argument or
a motion TO dismiss.
Judge Winston's Argument to Dismiss.
The view of the defense was that
! the investigation was an absolutely
privileged occasion, since the trustees
! had all the machinery for a trial.
! Thereafter a publication was made OF
the proceedings. There was no sug-
gestion that anything was put in or
| taken away from the proceedings. The
publication contained the proceedings
without change. omission or emen-
I dation. Therefore no opinion was eX-
pressed i'm the publication. The Su
preme Court has said that in order
| to show that there was malice there
must be legal evidence, showing or
| tending to show malice on the part Of
/ the defendants. Therefore the plain
/ tiff must show malice. which
/ is an essential ingredient Of
/ the offense. The plaintiff stands
here Just as he stood before.
| On what does the plaintiff rely to
show malice? The plaintiff testifiei
/ that he and Kilgo were friendly. There
| is not a particle of evidence of ill-will.
malice or unkind feeling on the part
| of Mr. Duke to the plaintiff up to the
| time of the investigation. Nor up 10
| the time of the investigation was there
any evidence of unkind feeling on the
( part of Dr. Kilgo, when he spoke
| under privileged circumstances. Nor
was there anything since except pos
| sibly the pamphlet itself. Therefore
| they must look to the transaction IL
| self. There is no evidence of express
malice. unless it be found in the PAM
! phlet itself.
| The plaintiff recognized that they
must show malice and they offered TO
| show that DR.. Kilgo and Mr.. Duke ha
/ not bought anything from Mr.. Gattis
| since the investigation. 1t had been
! shown that Mr.. Gattis had gone out OF
/ the retail business before the investi-
! CATION. Mr.. Duke was never in his
store so far as witnesses say. The
| evidence is that another book store
! had been started nearer and more con
venient 10 the defendants by young
men connected with Trinity College
! Yet they would argue to the court that
/ their failure to buy from Mr.. Gatus
/ after he had gone out of the retail
! business, was evidence of malice.
Yet that is ALL 1T is thinner than
/ the recollection Of dream Courts
are too serious TO base verdict on so
fiimsy evidence growing out of such a
circumstance. Before that issue could
! De submitted We Noulu nave 10 Jullli
20 rail legal fence.
| What evidence is there of malic1
/ growing out of the transaction itself
They will argue that it was false:
| that they knew it to be false. or ought
! to have known it: that il was pub
/ lished with reckless disregard of plain
| Tins rights, and they would ask your
Honor to charge that these circum-
stances show legal malice.
- q
ton: it is the same as an action for
malicious prosecution.
The court would charge them with
showing false arrest and the want OF
probable cause.
The plaintiff must show that the
charges We're false. and that the DE-
PENDANT knew they were false or ought
TO have known it.
The question of probable cause is i
matter for your Honor. Unless your
| Honor finds that the defendant knew
| or ought to have known that the state
mentS were false, there must be non
suit.
Judge Winston read from the opin-
| ion of the Supreme Court quoting
that portion which stated that no
! man could read the speech of Dr.
Kilgo without coming to believe that
| the speaker felt that he had great
4
| privileged one and that malice could
| not be presumed from a mere indif-
ference as to the result of the publica-
! ton.
| Addressing himself to the question
of probable cause for DR.. Kilgo "a
know the falsity of the charges. Judge
/ Winston referred to the fact that the
Supreme Court had said that his
statements were reasonable differences
| from the testimony at the hearing
when 21krustees voted for DR. Kilgo
so witnesses testified FOR, and only 2
against him.
"Whose's going to investigate the in
vestigatOrs? Church trials are of the
| same dignity as trials i'm courts
He cited a case where a man had
risen i'm church trial and called an
| other a damned liar. The court held
that the statement was privileged.
AS to Ramsay VS.. Cheek, where
| statements We're sent to Washington
which were false and recklessly sent
such recklessness and lack of prob
| able cause. constituted malice But
the court held then that this even,
was true only because there was no
obligation on the part of the defend
ant to send the statement to Washing
| ton.
/ The Supreme Court had intimated