The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1906-05-25
DEFENSE BEGINS.
Coleman Libel Suit Reaches the
Second Stage.
Frank P. MacLennan First Wit
ness for State Journal.
He HAD NO MALICE.
Publications Concerning Cole
man Believed to Be True.
Article Printed Criticized Con-
duet Of Public Officials.
He HAD NO MALICE.

Frank p MacI4ennan. editor and
proprietor of the state Journal. and
defendant in the Coleman libel suit
was on the witness stand at the dis
trict court nearly the whole OF TINS
forenoon. His cross examination by
John E. Hessin, attorney for Coleman,
was very extensive. and Mr.. Mac
Lehman was called uDon to explain IN
detail his connection with the article
of August 20, 1904, which forms the
basis for the libel suit.
Mr.. MacLennan declared that the
article was printed after careful in
vestigation. and the subsequent de
velopments have demonstrated that
the charges made were well founded.
He stated that nothing which he has
printed concerning Mr.. Coleman or
other state officers had been Influenced
by personal malice. The attorneys for
the plaintiff in their cross examination
of Mr.. MacLennan were unable TO
shake the testimony which he had
given on direct examination
Among other things Mr. MacLennan
was questioned by the attorneys for
the plaintiff concerning an editorial
which appeared in the State Journal
criticising Mr. Coleman for not prose-
cutting T. T. Kelly and his bondsmen
for deDOsiting state funds in the de-
funct First National bank of Topeka
1t was alleged that this editorial
showed Mr.. MacLennan's malice to-
ward Mr. Coleman. This gave the de-
fense a good opportunity TO introduce
i'm the evidence the whole of the petit
IiOn which G. c. Coleman himself
signed and filed in the Shawnee county
district court against the Title Guar
anty & Trust company which was on
Kellys bond. In this petition Mr..
Coleman himself charges Mr.. Kelly
with unlawfully depositing state funds
in the First National bank.
In a summary of evidence in this
case yesterday a typographical error
made this paper say that Mr. GODDARD
testified that the commissioners of
C0mauche county had agreed to pay
him in refunding the bonds. Mr..
GODDARD testified that the commission
ers had agreed to pay him $4,000 for
his services and that he GODDARD. had
agreed to pay County Attorney Rich
$500.
Judge Dana at o'clock Thursday af-
ternOon overruled the demurrer of the
defendant to the evidence introduced
by the plaintiffs in the Coleman libel
suit, and the work of taking testimony
on behalf Of the defense at once COM
menced
Frank p MacLennan was the only
witness examined, and then court ad-
journed for the day.
In the opinion which Judge Dana
gave on the demurrer, he reiterated his
position that the publication of the ar
tfcle regarding the Comanche county
bonds was privileged, but held that as
all such publications are HbeIlous per Sc,
and because the law presupposes malice,
it would be necessary for the defense
to introduce its evidence to rebut this
legal supposition.
This is a civil action, basing a right
to recover damages on the publication
Of an article charged to be libellous,
said Judge Dana The defendant ad-
mits the publication, and asserts two
defenses: first. that the article is
privileged publication; second, that the
statements are facts which he claims
will be proven true.
THE court is not inclined to change
its view previously expressed on the
question of whether this Is a privileged
publication Under authority of the
decisions in the 31st and 61st Kansas
I believe this is a privileged occasion;
the time of the publication during a
campaign: the fact that the plaintiff
was a candidate for reelection to pub
lie Office. and the character Of the ar
ticle all tend to show this privileged
character To urge that it is not priVi-
legged because the paper has an adver-
tising Office in New York and Chicago.
when the great bulk of the circulation
is admittedly in Kansas, looks like
splitting hairs
1T being a privileged publication. the
burden IS upon the plaintiff to show
actual malice. If there Is any evidence
to show actual malice, this demurrer
should not be sustained 1t is the rule
to show the motive. These articles have
been introduced. The court therefore
can not say that there IS not evidence
on this point, and it VIII be compelled
20 overrule the demurrer
THE second defense is that the facts
# proven constitute q complete de-
tense. This article is evidently libel
ious per Sc. / understand that the law
presumes malice. The truth of the
charges made By the plaintiff is pre-
sumed. II no evidence whatever had
been introduced on either side the
plaintiff would have been entitled to
damages under presumption of law In
view Of the evidence which has heen
submitted, the court is not prepared to
say that the truth of all the article has
been shown. even though the court
should believe that there had been a
plain violation of the statute and the
plaintiff had participated in that viola
tion. Are the acts of the plaintiff and
others to be pronounced a conspiracv2
That is a question for the jury to say.
and to determine whether the article is
true."
During the argument and decision
9n the demurrer, the jury was excused
from the room.
The jury resumed it's place in the
jury box at 4 p. m. and the defense
commenced the Introduction of its
testimony.
w. P. Hackney. for the defense. Of
fered to introduce In evidence the re
port Of Attorney General A. I. VII
uams concerning the original fraudu-
lent character of the Comanche
county bonds. 1t was objected to on
the ground that the matter had been
stricken from the answer. and the oh
lection was sustained
Mr.. BIacLennan on the stand
The first witness called in behalf Of
the defense was 2. P MacLennan.