The Birmingham age-herald., 1909-06-02
JUDGE ANDERSON RULES
 AGAINST GOVERNMENT
Defendants Resist Plan to Remove Case to District of Columbia and Testimony Is Taken Rel
 atiVe to Graft Charges.

and Charles R. Williams, owners of the Indianapolis News, were b,fore Judge Anderson of the United States court of this district, sitting here today, resist ing removal to the district of Columbia for trial on indictments charging them with having committed criminal libel in publishing articles intimating that there was an enormous graft in the purchase by the United States of the Panama canal zone. Messrs. Smith and Williams were indicted by the grand jury of tho District of Columbia jointly with the proprietors of the New York World.
 Stuart McNamara, assistant United States attorney for the District of Co., lumbia. and Charles w. Miller. district attorney. represent the government in the case, and Ferdinand Winter of this city Is the attorney for the defend- ants. The latter maintained today and sought to prove his points by the evil dence presented that the newspaper publishers were not guilty of the mal- ice necessary to complete criminal libel and that they had not committed an offense for which they could be re- moved from one district to another for trial and that the indictmenr charging them with criminal libel was base less.
 The government resisted the intro duction of evidence In the hearing, maintaining that on the face of the in- 'dictment and the information the de- fendants should be transferred to the District of Columbia for trial.
 Against Government. Judge Anderson ruled against the government lie called attention to the necessity of proving express not implied malice n a prose cutions for criminal libel The defense then placed upon the stand Ernest l. Lewis. q staff correspondent of the News. who denied that he had had any instructions from his employers as to handling the Panama canal matter in his dispatches from the political headquarters at Chicago during the last campaign.
 Judge Anderson said implied malice in a newspaper publication might be sufficient to justify judgment for damages against the publisher But in a criminal action different degree of malice was required 1t must be eN- press malice.
 "of course, there is back of this their intent said Judge Anderson The owner of a newspaper might very well be held civiIly for anything appear ing in his pages, because the men who put il there are his agents but when it comes to a question of criminal liabil- ity for publication of an article 1t is a very different thing Suppose" con- tinued the court, the proprietor of New York paper should be off six months cruising in his yacht During his absence there was vicious article appeared in his paper Should he be held criminally? It does not appear 10 me that he could be held criminally liable.
 T am speaking about the ultimate fact. If the owner Is not present he actually knows nothing of the pub tion and could not possibly be held guilty of the crime.
 Charge Is "Aburd.'
 MT. McNamara characterized as absurd the charge of corruption in the sale of the Panama canal.
 The court asked MT. Winter, counsel for the defense, for information as to the Senate investigation. MT. Winter said that William Nelson Cromwell had all along made it appear that he was only the attorney for the French company, and that there were no go-betweens in the transfer to the American government though it was charged that the stock of the French company had been bought by Americans for only Slz.000000. Mr Win ter said he wculd admit that 1t misat have been MT. Croniwell's duty not to reveal the identity of his clients to the Serate
 But what inference has the public a right to draw?" commented Judge Ander- son. There is the point"
 "The public hao the right said Mr. Winter, ito discuss and If possible to ventilate the matter and especially dur ing national campaign upon which de- pended in large part the character of tae membership of Congress-"
 Questioning Charles R. Williams, editor in-chief of the News, MT. McNamara drew out that MT. Williams had not writ. ten the editorials complained of He had, however, approved them. Mir. Williams said the publication of the editorials he thought was in the interest of public morality and integrity.
 Howlands Testimony.
 Louis Rowland, who wrote the editorials and handed them to his chief Mr. Will liams told the court on the stand that he wrote them because he thought the sub ject was one of the biggest things in the campaign" and he would not havA dis charged his duty if he had not discussed it. He made no personal Investigation into the records. and he did not know personally that c. P. Taft was interested fin the Panama transfer. "So It seems.'' put In MT. McNamara, a bit sarcastically you thought only 1t was the biggest thing current at the time"
 Yes" retorted MT. Rowland, land I think so yet. I was suspicious and [ am yet suspicious I think I had very good reasons for everything | wrote
 What did you mean when you wrote that the New York World might now be short on evidence. but it could be long on presentation?"
 q meant that possibly just now there was not sufficient proof to satisfy cross examining lawyers MT. Rowland came caek.
 MT Winter said that many things were tsue that could not be proved.
 Earlier in the afternoon Delavan Smith was on the witness stand and said he had