Los Angeles herald., 1909-06-02
FIGHT
VENUE CHANGE
PUBLISHERS OF INDIANAPOLIS
NEWS IN COURT
PROSECUTION OUTLINES ITS AL.
LEGGED LIBEL CASE
Publication of Articles Crlticising
Panama Canal Work Behind
Present Suit-First
Witness Called
TBy Associated Press.l

Delavan Smith and Charles r. Will
lianns. owners of the Indianapolis News
before Judge Anderson in the
United States district court today re-
sisting the effort of the federal gov
eminent to remove them LOT tIlai "
the District of Columbia, the grand jury
If which found the indictments against
them and the proprietors of the NE"
York World in the same matter.
Stuart Mcnamara, assistant Unlted
States attorney for the District or COL
umbia. made the government opening
statement. ,,.z1,,7
He said the defendants had published
in their newspapers charges that a syn
dictate composed of c. p. Taft, Douglas
Robinson. William Nelson Cromwell
+ p Morgan and others bought from
the old Panama canal company us Sc
curities for about $12,OO0,O0O, and by use
of their influence in the high places or
the government We're enabled to unload
the Panama property upon the Un1teu
States for about $4,000, 900, thus wrong
fully taking an enormous proft:
Mr. Mcnamara asks that Judge An
derson, sitting as a committing lnasls-
trate. make an order removing Messrs.
Smith and Williams TO the DlsIIlct VI
Columbia for trial
Ferdinand Winter of the defense
that the indictment was de-
fective on it's face; that the ofIense al
legged was not one in which defendants
could be removed from their own United
States district to another for trial.
Calls First Witness
He called the first witness, Ernest
7, Lewis a staff correspondent for the
indianapolis News, to examine him as
TO instructions given to him Tor the
writing of certain articles, but objection
was raised by United States Attorney
Miller for this district.
Mr.. Winter contended it was proper
to attempt to show the indictment was
faulty or baseless, as bearing upon an
for removal
In this case, he said, actual mallce
must be shown, and this, he held, would
be impossible. The court ruled that he
would hear the evidence.
Mr.. Lewis proceeded to TESTIFY that
he was about the national republican
and Democratic headquarters in Chi
cago in October of 1908, and that there
was gossip of the conditions OF the
transfer of the Panama canal zone TO
the United States, but he took no notice
of the matter in his dispatches to his
newspaper until after the publication
in a Chicago newspaper of cable
from Paris bearing on the subject, ana
that he had no instructions from the
defendants as to his course in report
ing these rumors and allegations.
The court held that if an editor OF
a New York newspaper were absent on
his yacht and a libelous statement
were printed in his paper In his alb.
sence he should not, in the opinion OF
the court be guilty by neglect of
criminal libel.
SAYS Fraud Was lntimated
Alleged intimations that a profit of
S2S O00,0 900 fraduluently obtained had
been divided among the members OF
the Panama syndicate" publlshed IN
the indianapolis News, were read by
District Attorney Miller in an effort
to show the defendants were malicious.
One of the editorial sentences was:
Some day the thieves that robbed
their country will be discovered"
Mr. Lewis continuing, said he had
heard the gossip of a Panama canal
graft" at the political headquarters
and in the hotel Hobbies of Chicago,
but he had not written Of it in his pa
per until after he saw in the Chicago
Daily News a cable message contain
ing the same allegations. He then in
cluded in dispatch to the Indiana
polls News, the Chicago Daily News
cablegram He further quoted from
an editorial in the Chicago Journal
Delavan Smith was a witness to-
day He stated that at the opening
of the last presidential campaign he
instructed his managing editor that
the activities of the two parties should
be treated in the paper strictly on
their news merits He gave no in
structions to Lewis as to the Panama
canal matter. He was at Lake Forest
at the time of the publication of the
cartoon and most of the editorials
upon which the Indictment was based
and he had no knowledge of their
preparation, he said.
The answer of the New York World
to Mr.. Roosevelts denunciation of the
Panama charges, he testified, was car
ried as a part of the regular report
of the Associated Press and he did
not know of the article until he read
it in the newspapers
Delay Is Granted
Smith and Williams successfully re-
sisted for the moment at least, their
removal to the District of Columbia.
The lawyers gained from Judge An
derson a ruling that evidence should
be introduced to this effect. The de-
PENDANTS had committed no offense for
which they could be removed to an
other district for trial, they said. At
tOfneyS IOf the government NlSplOuo
resisted the introduction of testimony,
but were overruled.
Judge Anderson, in his ruling, de-
clared that malice in civil action
was different from malice in a Grim
inal case. Implied malice in news
paper publication might be sufficient
to Justify a judgment for damages
against the publisher, But in a Grim
inal action a different degree of malice
was requred-it must be express mall
ice, he said.
"Of course there is back of this the
said Judge Anderson. 'The
owner of a newspaper might well be
held civilly for anything that appeared
in it's pages, because the men who put
it there are his agents, but when it
comes to a question of criminal Ii
for publication of an article 1t
is different.
LAS, for example. if the proprietor
of a newspaper in New York q could
not cite this illustration for western
paper, because rich as they are they
are not rich enough to own their own
yachts) but suppose the proprietor of
a New York paper should be off six
months cruising in his yacht In his
absence a vicious article appears in his
paper. Should he be held criminally?
1t does not occur to me that he could
be held criminally liable.
81 am speaking about the ultimate
facts If the owner is not present he
knew nothing about the pub
lication and could not possibly be held
guilty of the crime"