Bisbee daily review., 1906-05-06
LIBEL ACTION IS THROWN OUT
 OF COURT ON DEMURRER

1 that the defendant be bound over to await the action of the next grand jury, St T2lSlT1 ar3tts E. E. Ellinwood, for defense: We
 willf eb5ectI t9l lsltat.5 Y @ifi cite the court to Section SIS, which covers this point: If the demurrer be allow. I'd, the judgment. shall be final upon
 the indiotmeptI deFaurred to, and shall be a bar to another presentation of the 'ofsefise, unless the court being of opinion that the objection on which the demurrer is allowed may be avoid ed in new indictment, direct the case to be submitted to the same or an other grand jury" The court knows what happened in this court. He
 knows whether or not the affidavit was filed in this court; he knows
 whether, on a subsequent day. it was proven to have been perjured, and if it was proven to have been perjured, 1t would be utterly impossible for the District Attorney to negative it, and l think upon the facts the court would not be warranted in holding the de- fendant to answer to any grand jury.
 The Court:-If the court is Satis- fled that crime has been committed, and that the proper indictment can be drawn, the court can order that he | be bound over to the next grand jury. find upon the facts alleged in the in dictment, if the facts as alleged in l this indictment, constitute criminal libel if they are properly stated in this case, the case could be ordered sub mitted to the next grand jury, because oyerruling the demurrer without any order, would be bar to the action of any future grand jury. The fore part of the charge does not charge an of fense that the afdavit was prepared | by Attorney Bennett, which was next day proven in court to have been per l jured" That is not a defamation of | a lawyers character. As I say, be- cause lawyers prepare and present perjured affidavits to the court any l term of court, and | nave been charit- able enough in my view of the matter
 to suppose that they did not know it, | but I will say that the lawyers have not protected the court and the public
 as fully as they should by being care | ful. There has been a ready disposi-
 tion on the part of the lawyers to pre- sent anything to the court that his client insists on. A person that is
 charged with a grave offense is usu- ally one that will swear to anything | that will secure a continuance when
 he is not willing for trial, but that is
 not such a culpable charge against
 the lawyers as would make it an of fense under the statutes.
 Now in casting about for an excuse
 to take the case to some other county,
 the lawyers for the defense built up
 mountain out of a mole hill" Now I don't consider that that is defama- l hnpan-n lo ic
 ployed under his oath of office, to look
 after the interests of his client, as one
 of the counsel said, they are expected
 to make mountains out of mole hills.
 As a lawyer once said to me when he asked me to come into chambers, he
 would like to consult with me little
 while in regard to a case: Now,
 want to be frank with you, and l want to be fair with you in here, but of course out there 1t would be differ ent. That is too much the theory
 on which our bar go. In a private
 conversation they will be candid and
 frank, but when they get the judge on the bench they will take the ad-
 vantage of him if they can.
 The surprising part of the proceed inSs is that the court should have been
 influenced by such afdavits." Now,
 nere is the point of this publication
 that is subject to severe criticism.
 By Attorney Bennett, who has proven
 conclusively that he can present any
 old kind of an affidavit on any subject
 OR the shortest notice" That is not
 a statement that ought to be counten-
 anced in a public newspaper in re-
 gard to any lawyer of good standing
 at the bar, and no editor ought to pub fish it. He is not justifable or eXcus-
 able for publishing that kind of a
 statement, but I don't think it goes
 far enough to be a basis of criminal prosecution, so that while the publi
 cation is a matter that should be SC
 verely criticized and is reprehensible in the extreme, I do not believe that the District Attorney could frame al indictment upon the quotations of the
 publication that are in this indictment that would constitute a libel tha , could be sustained in court"
 i, The motion of the District Attorney that the defendant be held to the nex