Bisbee daily review., 1906-05-06
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 and with the declaration that "here is where get into this fight" demanded that the court hold the defendant to the next grand jury. After little lspaEriAs watR Everybody talking at once, and a cold precipitation breaking court finally landed a knockout blow squareIy on the point of the chin, and the Tall Sycamore" went down with
 crash. The Little Sycamores" lead him gently away, while the de fendant shinned across the court house fence and caught tine IraIn ioT home.
 There will be no more acts in this comedy of ''Tommyrot." The curtain was run down for good at Tombstone yesterday, and>>we are again a free lance. The court, in setting aside the indictment and denying the motion
 that the defendant be bound over to the next grand jury, said:
 The Court: The indictment in ques- tion is fatally defective in not nega-
 tivine the allegation of the publica- ton.
 The rules of construction are ap- piled much more strongly, criminally, to criminal indictments, than in civil
 cases, and the allegations that he | printed the following false and de- | famatory matter concerning Thos. D. Bennett" is not sufficient to negative the positive allegation in the publi- cation. This is a part of the indict- ment, but so general in terms, that they could not be fastened on any tNf hof fharn fc rNf any denial in the indictment of the
 fact that Bennett did just what he
 was charged to have done in any one
 or two of those instances. If there are three allegations in the publica- tion, and if Bennett did two of those, ! and did not do the other. the publica- tion would be false in the general ! term. yet if the one instance in which | he failed to do what had been charg-
 ed in. the publication that he did do, was not such an instance as would have caused the accusation to be libel. and that would not be sufficient.
 The indictment fails, for that resaon, | to state the criminal offense.
 | Il don't know whether 1t is worth while at this time, or proper, to say | anything about the indictment or the subject of the indictment, but perhaps | before this term of court is over, it will become necessary to say some
 thing on that subject. A publication
 can be in very bad taste and be in l several respects unwarranted and un- jpstifiable, without being criminal and criminally libelous, and in this in-
 stance l do not suppose it is necessa-
 ry to go far enough to pass upon the
 criminality of the publication, if the
 allegations were fully made. How
 ever, it does not occur to the court
 from the reading of 1t, the extract of
 the publication that is in this indict- 1.uent. Is asssrf S.aiz al -Hhel- The charge
 as has been said by the counsel for the defendant, the charge may have
 been absolutely true in every instance,
 and similar statement might as truly have been made of every member that appears at this bar. It perhaps would hardly be proper matter of newspa- per comment, but it might be proper
 as an utterance from the bench to say that lawyers at the bar are not as dili- gent and conscientious in probing the
 truth of the statements made to them
 by questionable clients as the court
 would like to see them. don't know
 but that I could say right posi-
 lively that there has been a
 term of court, since have
 been on the bench that have
 not been moved to make rulings rela-
 tive to some cases by false affidaVits.
 In fact, have quite frequently, if not every term, granted continuances
 much to the detriment of the admin
 istration of justice, on what I believ-
 ed to be perjured affidavits at the
 time 1 granted the continuance be-
 cause, if matter is sworn to by de- fendant that is charged with a grave
 offense, it would be very unwise on
 my part to force him into a trial of the case, however justly he might merit it, when on appeal to the Su. pTeme Court the case would be revers, f ed and instead of getting six months
 continuance or perjured affidavit, he would get eighteen months continu ance by an appeal to the Supreme ? Court, on a paper that prima facie
 was good on it's face. Counsel who have
 addressed themselves to the criminal
 practice will realize that as well as the court does, and the only people ? that can protect the court against ? that character of affidavits Is the law yers that happen to represent crimi
 hfA Ot SdoS SOhoSiChSSJ udt tIidt as ! something that the lawyers are only : morally responsible for.
 2 Ed F1anigan:-Do understand tha
 you do not hold that it is libel per SC
 or that we did not negative 1t?
 The Court:-That you did not mega 1 tive it. In other words, all this in + dictment says is, he did just exactl. L what the publication says he did.
 Tom Flannigan:-Then I will asl