The sun. [volume] (New York [N.Y.]) 1833-1916, 1915-05-21

ul malice. But IN TINS question: tne our-
den OF proof is on tae plaintiff He is
bound TO show recklessncss or warton-
ness. The defendant In this question is
presumed to be innocent. not to be- wan
ton or reckless, Malice Is a state OF
mind. II must be shown by circum-
stantial evidence.
Direct evidence Is impossible. And
that is the meaning Of a great deal or
the testimony in this case. evidence
bearing upon the defendants state OF
mind. The plaintiff may show quar-
rels between him and the defendant.
threats by the defendant, other publ
cations than the article complained OF.
anything that tends to prove that the
defendant was actually malicious.
The defendant may OFFER in evidence
anything that tends to prove the non
existence of malice. friendship for The
plaintiff that the occasion OF the publ
cation implies 30 malice that he had
heard from others the matter OF mis-
charges; that he had read them In pa
pers and reports.
THAT kind OF evidence is called evil
dence in mitigation. 1t simply bears
upon the question OF how much. II any.
punitive damages shall be allowed by
the jury.
Evidence in Justification raises the
question II any damages should he
awarded.
Evidence in mitigation raises the
question of how much hould be
awarded.
LibellOus Per Sc.
II have held that the article is libel
lous per Sc IN two regards. II charges
a corrup: political alliance between Mr..
Barnes and Mr. Murphy in regard TO the
government of this State. II charges
that Mr.. Barnes worked through a COR
rupt alliance between crooked business
and crooked politics. All else is I'M
material. You must fix you mind on
these two charges. The only question
you have 20 consider was the article
true with regard to these two specific
points?
Il have held that the word corrupt
does not necessarily refer TO Illicit pc.
cunlary gain that II Is not non
nous with venal. II may mean a de-
parture from fidelity. ar indebtedness
TO a trust. Giving the word that mean
ing. Is II true that there was such a
corrupt alliance between Mr.. Barnes and
Mr.. Murphy?
The mere fact tina. upon certain &C.
casions Democrats and Republicans
! voted together in support Of or in OPP
position to certain measures. even II adj
vised to by the plaintiff. would not he
sufficient TO show that the plaintiff was
J corrupt.
Take the Har,e-Agnew racetrack
bill. Mr.. Barnes had "A right, II he
thought proper, to argue against II and
10 urge Democrats and Republicans to
vote against IL. AS regards direct pri-
maries legislation the same thing is
true.
Barnes had a right to supper, or op-
pose the election of Aids. He had a
right to oppose or support measures ad-
vocated by Gov. Hughes. There is no
evidence In the matters to support the
charge of corruption.
Senatorial Incident.
But there is some evidence on the
subjects that I submit; TO you. That
evidence relates to the Senatorial situa-
ton in 1911. II Mr.. Barnes as leader
of he Republican party agreed with Mr..
Murphy rs leader of the Democratic
party that he. Barnes. would keep the
Republican legislators steadfast in vot-
ing for Mr.. Depew. not for the purpose
of benefiting the State or obtaining a
more useful Senator. but for the purpose
OF giving Mr.. Murphy a free hand. then.
! say. there is prima facie evidence.
You may find that such an alliance was
corrupt.
80, was there such an agreement be-
tween Mr.. Barnes and Mr.. Murphy, and
II 80, was that agreement corrupt In the
sense that 1t showed disregard OF duty
by Mr.. Barnes as the head OF the Re-
publican party"
Justice Andrews reviewed the testi-
mony given by william Loeb. Senator J.
Mayhem Wainwright and Franklin u.
Roosevelt that Barnes had admitted a
' corrupt arrangement. He mentioned the