The Washington herald., 1915-05-21

!
charges is true. BY preponderance
l do not mean a great number of wit
nesses When you have made up your
mind what you believe, you must base
your belief on some excess OF evil
dence-it does not need to be large
In favor Of the contention Of defend
ant, on whom the burden rests.
where the defendant fails to prove
one or more Of the charges the plain
tiff is entitled in any event to the &C
tual damages he has sustained"
Here the judge defined malice and
reckless and wanton statement. which.
he said il established, would entitle the
plaintiff to punitive damages. He made
it clear that punitive damages Gntend-
ed as punishment for maliciously libel
Gus atacks) are distinct from the COM
pensatory damages suffered by the plain
tiff by reason of a libel. In punitive
DAMAGES, he said, the burden Of proof
IL on the plaintiff, who must show actual
malice before any such damages may be
found.
The justice reduced the case to the SIM
plified form in which it was to be SUBJ
mitted to the jury.
THE article complained Of" he said,
lis libelous per Sc in two regards. First.
II it charges a corrupt political alliance
between Barnes and Murphy regarding
the government of the State; second. be-
cause it also charges that Barnes had
worked in corrupt alliance between crook
ed business and crooked politics. There
Is nothing else il. it that is libelous.'
Here, for the benefit of the jury, the
justice defined the word which was the
zeal cause of the suit.
Corrupt" he said, does not neces-
sarily refer to Illicit pecuniary gain. 1t
is not synonymous with venal. 1t may
mean tainted. perverted. dishonest. I'M
faithful to trust.
1.-THE mere fact that on certain occa-
sions Republicans and Democrats voted
together, even if advised to do so by the
plaintiff. does not imply anything wrong
Barnes had a perfect right. if he thought
wise. to oppose the race track bill or to
primary bills and the Aids matter
There is some evidence. however,
which I submit to you concerning the
Senatorial situation. If Barnes as leader
Of the Republican organization. agreed
with Murphy, as leader of the Demo-
Gratis. to keep the Republicans steadfast,
not for the purpose OF benefiting the
State. but for the purposes of allowing
a free hand in the selection of
find that such an alliance was corrupt"
Here the justice cited the evidence Of
Loeb as to Barnes statement that such
An alliance existed. that of Senator
Wainwright that Barnes had told him
the same thing. and that of ex-senator
Franklin d. Roosevelt that he had re-
peated to Barnes Gradys statement that
such a combination existed, and had re-
ceived no reply or denial.
the contention of the defense that edi-
torials in Barnes Albany Evening Jour
nal supported this claim. Zone of these
editorials strongly favored the cause Of
Sheehan, Murphy's candidate against T.
NJ. Osborne and Edward F. Shepherd.
supported by the anti-Murphy Democrats
n the legislature Of 1s1D.
He stated further that the evidence
that Barnes had had talks with many
Republican legislators on legislative mat
.ers might be taken as showing his
ability to exert control in the Senatorial
light
The justice then made it clear that
Barnes that fatty denied any such com
oination: that many legislators had
shown that the Albany editor never |
" Loeb, while supported by Senator |
iuggenheim, had been contradicted by |
our witnesses called by Barnes.
AS to the second charge that Barnes |
worked through a corrupt combination
II crooked business and crooked poll |
les the justice said:
Two classes of evidence have been |
fered in justification of this charge. |
The printing evidence. I say. has nothing |
o do with this case. II you allow it to |
Interfere with your verdict in the slightest F.!
ou will be false to your duty.
There is also evidence in support of |
Justification which I have called COM
etent. This evidence brings sharply in
onflict the recollections of the plaintiff |
md the defendant. 1t consists solely of
alleged to have taken place.
me says these did take place. The
ther denies that they took place"
The Justice sketched the testimony of
Roosevelt and Barnes concerning CONVEX
atoms about campaign contributions and
he franchise tax bills. Barnes, as quoted
y Roosevelt. had told the Colonel that
was the custom for Democrats to con-
ribute to Republican campaign funds,
Albany County and A. N.
'rady. In the same conversation, accord
IL to the Colonel. Barnes had urged him
ot to advocate the franchise tax bill.
hese conversations were flatly denied by
arnes.
IF both these charges are true" con-
nued the justice, the publication is
,stified and there can be no recovery.
neither is true the plaintiff is en-
tied to a verdict. If only one is true
he plaintiff Is still entitled to a YER
let"
Justice Andrews said that in the list
campaign contributions to the
oosevelt campaign. there was no evil
ence to show that any promises had
zen made regarding them or that Mr..
oosevelt had any knowledge Of them.
He also pointed out the Roosevelt
,ntention that the Plat letters showed
lily his desire to comply with Platt's
i'll. so far as necessary. to get legis-
tion and appointments through the
gislators and the Colonel had on the
and. announced that the public &C.
on complained of was without malice,
ritten in the interests of a candidate, |
oosevelt believed was a good candi-
tie, and based on statements he be-
,ved to be true.