The Birmingham age-herald., 1909-06-02
CRIMINAL LIBEL SUIT
 AGAINST NEWSPAPER
 MEN FINALLY BEGINS
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 ------------- ----.--.-- ---~S~--~~- DC personal knowledge of the editorials before they were published Unless the government decides to introduce further evidence tomorrow the argument will be- gin then, and the matter will be in the judge hands by evening.
 Opening Statement.
 Stuart McNamara, assistant United States attorney for the District of Co., lumbia, made the governments opening statement He said the defendants had published in their newspaper charges that a syndicate composed of c. P. Taft, Doug lass Robinson, William Nelson Cromwell J. Pierpont Morgan, and others, had bought from the old Panama Canal com pany it's securities for about $12000,000 and by use of their influence in the high places of the government were enabled to unload the Panama canal property on the United States for about $40 100000, thus wrongfully taking an enormous profit McNamara asked that Judge An derson, sitting as a committing magis- trate, make an order removing Messrs. Smith and Williams to the District of Columbia for trial.
 Ferdinand Winter for the defense main tained that the indictment was defective on Its face, that the offense alleged was not one in which defendants could be removed from their own United States district to another for trial. He called the first witness, Ernest T. Lewis, a staff correspondent for the Indianapolis News, intending to examine, him as to instruc- tions given him for writing certain arti- cles, but objection was raised by United States Attorney Miller for this district that the only point before the court was as to the power of the court to order ba Hofa pH fhof ha merits of the cause could not properly be entered Into at this time. MT. Win ter answered that 1t was proper to at- tempt to show that an indictment was faulty or baseless, as bearing upon an application for removal and proceeded to cite authorities. In this case, he said, actual malice should be shown and this, he held, would be impossible.
 Evidence Is Heard.
 After argument the court ruled that he would hear the evidence MT. Lewis proceeded to testify that he was about the national republican and democratic headquarters in Chicago in October of 1908, and that gossip of the conditions of the transfer of the Panama canal zone to the United States filled the air, but he took no notice of the matter in his dispatches to his newspaper until after the publication fn Chicago newspaper of a cable from Paris bearing on the subject, and that he had no instructions from the defendants, as to his course in reporting these rumors and allegations.
 An objection of the prosecution and fol- lowing argument on the nature of malice as 1t must appear in a successful prosecu- tion for criminal libel, the court fcom- mented that if an editor of any newspa- per, for instance, was absent on his yacht, and libellous statement were printed in his paper, in his absence, he should not, in the opinion of the court, be guilty by neglect of criminal libel. This opinion was questioned by the prose- cution. Neglect, the court continued, was not criminalfas appeared-and here Judge Anderson smiled broadly-''n the some- what notorious Standard oil case.' Effort to Show Malice.
 Alleged intimations that a profit of $2S,- 00O,000 fraudulently obtained had been di- vided among the members of the Pan anna syndicate" published in the Indian apolis News were read by District At torney 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
 The court permitted examination of the witness to proceed. MT. Lewis said he had heard the gossip of a Panama canal gra1J at the p0nucal neauQuarIerS and the hotel lobbies of Chicago but he had not written of 1t to his paper until he saw in the Chicago News a cable dis patch containing the same allegations. He then included In a dispatch to the Indianapolis News the Chicago News ca blegram. He further quoted from an editorial in the Chicago Journal. say ing that if the American people had been mulcted and if Charles P. Taft had a hand in the fraud the matter should be made known to the public at once.
 At this point the court adjourned until p. m
 Smith On Stand.
 Delavan Smith was called to the witness stand at the opening of the afternoon session. He said his home was at Lake Forest, Ill.,, near Chicago, but that he spent good deal of time in Indianapolis as one of the two parties in the business of publishing the Indianapolis News. He said that at the opening of the last pres idential campaign he instructed his man. aging editor that the activities of the two parties should be treated in the pa per strictly on their news merits. He gave no information to MT. Lewis as to the Panama canal matter. He was at Lake Forest at the time of the publioa- tion of the cartoon and most of the ed itorials upon which the indictment was based and he had no knowledge of their preparation, he said. The answer of the New York World to MT. Roosevelt's s de- nunciation of the Panama charges was carried as part of the regular report of the Associated Press and he did not know of the article until he read it in