Show THE INSIDE WORKINGS The Arguments in the Lowe I Herald Case IT IS A DISGRACE TO JUSTICE Reasons Why the Verdict Should Not be Allowed to Stand The Plaintiffs Plain-tiffs Reputation The case of Charles L Lowe plaintiff and respondent vs THE HERALD Company Com-pany defendant and appellant was the first one called in the Supreme Court yesterday Arthur Brown and Jndge Sutherland appeared in behalf of the appellant and O W Powers aired his legal rhetoric for the benefit of the wild ana woolly man from Wellsville Cache County whom twelve good men and true aided it is alleged by the judges charge had decided THE HERALD had damaged to the tune of 5000 in consequence conse-quence of the publication of an artcle to the effect that he had committed an assault upon a halfwitted girl who resides re-sides in the same pastoral community TIlE ARGUMENTS were opened by Arthur Brown He read the complaint and referring to the testimony given by Lizzie Grant the halfwitted girl in question claimed that it amounted to a justification of the publication of the article The case should have been submitted to the jury with the statement that if they believed be-lieved the story as told by the girl Lizzie the plaintiff would not be entitled en-titled to recover The evidence offered on the trial in the court below was a i complete justification of the published I article The fact that the word rape had beeu used did not necessarily imply im-ply that that crime had been committed com-mitted The trial seems to have proceeded pro-ceeded on tin theory that the article admitted to have been published by the defendant did in fact charge the plaintiff plain-tiff with the crime of rape It is true the word rape is used and there is the direct charge made that the plaintiff was guilty of that offence An explanation I ex-planation or detailed statement of the i act follows and taken as a whole the article does not amount to A CHARGE OF TH AT OFFENSE The essential elements of the crime as stated in books and indictments ere omitted from it It was not stated informal in-formal language or in substance that the occurrence took place by force against the will of the female In fact taken as a whole the reader is lej tJ i inter that the rape was not committed The article was perhaps libelous whether it charged rape or not if false but not that it charged that completed crime Whenever a party is charged by naming some offense but the explanation expla-nation following it and accompanying it shows that no such orime had been committed the publisher or utterer cannot be prosecuted for the slander or libel contained in the charge of crima For instance if one should say to another an-other He is a thief he stole my land the libel or slander contained in the word thief is so qualified and explained ex-plained that there is no such charge of crime in it THE QUESTION HERE IS not whether there was a libel or not but in determining the charge as given on the subject of attempt and the sufficiency I suf-ficiency of the justification The court in effect charged the jury that I unless the defendant proved all the technical essential details and elements of completed rape then the justification justifica-tion was no defense This we say is an error The charge in the article itself was merely that of an attempt to commit a crime Proving the facts substantially as they are stated was a complete defense whether they amounted to rape or anything less or other Hence it was misleading for the court to call the jurys attention to all the technical ahdessential details of the crime and then after doing so add A charge of the commission of crime is not proven by evidence tending to show an attempt to commit it and also proving a part of the substance of the charge is not a defense THERE WAS NO EVIDENCE TO JUSTIFY this kind of a charge The injured person detailed on the stand and made complaints to others of a story substantially sub-stantially the same as that published by defendant If believed it was the duty of the jury to find for the defendant and only for the plaintiff if thby disbelieved dis-believed that story But the charge given by the court left the jury at liberty to believe the girl and that he committed all the acts she complained of and believe the complaints she made to other parties and also to find for the plaintiff The issue was not left to the truth or falsity of that story as it should have been but is made to turn as towhether thairstory amounted to a completed rape or only an attempt The court made the justification depend upon the fact of sexual penetration If the jury did not believe that that took place then they were to find for the plaintiff and the justification was no defense The article only charges an attempt and states the acts done Proof of these facts was a complete justification and the proof of a part of them was a justification pro tanto to the extent proven In other parts of the charge the court did correctly lay down the rule but it is well settled that correctly stating the law on one part of the charge does not cure the error of an incorrect or misleading statement another i THE charge taken as a whole INVITED THE JURY to find a verdict upon the issue whether the act complained of was completed or not The court excluded the evidence of what the girl said to others by way of complaint Immediately immedi-ately after the occurrence This also was an error The effect of suoh a rule as contended for is illustrated by the objections of the counsel for the plo n till at the trial and there was no question ques-tion could be asked Every question designed to draw forth the fact of a complaint or the nature of a complaint was necessarily either leading or calling for detail If counsel asked the direct question Was complaint made 1 it was objected to and was objectionable ob-jectionable because allowing the witness wit-ness to state what the injured party I had said amounted to a complaint And it was also objectionable as permitting per-mitting the jury to infer that the complaint com-plaint had been made on the subject of rape or injury of that character The only logical or sensible rule to set up that a complaint on that subject was made is to call for what the injured party actually did say and let the jury determine whether it was a complaint or not There is some conflict in the law on this subject but we think this rule is established by the weight of authority The evidence of I II I THE CHARACTER OF LOWE I was by the court limited to chastity His general reputation the defendant was not permitted to attack The reputation repu-tation of a man in a case of this kind is important It is the very gist of such actions and we claim that we have aright a-right to attack it not only as to the chastity but in all other ways It was proper to inquire Who are you What are you Whatstanding have you in the community A man might be a poor worthless wretch without character without reputation and yet have a reputation for chastity Does the court mean to say that such a man can go into court and obtain damages the same as a man of the very highest character We think not We have aright a-right to say that WE COULD NOT INJURE HIM that he had no character Lowe alleged al-leged that his reputation had been damaged to the extent of 25000 and the defendant had a right to show what his general reputation was They have a right to show that his reputation had not been damaged because thesimple fact that he had no reputation that could be damaged The defendant offered I of-fered evidence to show that the character charac-ter of plaintiff chastity and morals in Wellsvilla was bad The plaintiff resided in Wellsville and had resided there for a number of years To meet this evidence of bad character at home plaintiff called witnesses who had a casual acquaintance with him on business matters in farofftowns Steele knew him as a business man in Ogden Lowe had never lived in Ogden he had no chain of acquaintance acquaint-ance there and had never established a character in that town either for chastity or against it He had no opportunity op-portunity to do so but he is permitted now to answer the question as to his general character in Ogden Toponce knew him in Oorinne where Lowe never resided and he is permitted to testify of the general reputation of Lowe in Ogden where neither lived Bunce had done business with him in Logan and he is permitted to state what his character then was as a business man for honesty James Glendinning knew him years ago at Leesburgh Idaho and he was permitted per-mitted to testify as to his chastity at that point Geqrge A Lowe had done business with him in Salt Lake City also witnesses Hogle and Ruth and they ware permitted to swear that his general character was good though plaintiff had never lived in Salt Lake City had never been there long enough to establish his character on this subject and they never had any opporunity to observe his character in that pauler The evidence of Hogle chastity coming as it did from a man of such well known virtue as Hogle doubtless had its effect to j J f af i PREJUDICE THE JUBY I Toe admission of this evidence was error The court in admitting it seems to think that the plaintiff had the right to defend his character to the extent that it was attacked by the article claimed to be libelous but the rule is well established that the plaintiff is not authorized in the first instance to establish es-tablish a good character or as independent inde-pendent fact It was only to rebut evidence evi-dence produced by the defendant that he could go into the subject Hence the evidence of good character must be in its nature rebutting that is it must answer the evidence of defendant This evidence so introduced did not tend to answer the evidence of the defendant In this case this evidence was highly prejudicial The parties thus called to speak of the character of plaintiff his behalf were men well and widely known men of high standing and known I chastity in Ogden and in Salt Lake The reputation and character of plaintiff was the very gist of this action It had been put in issue by the plaintiff in bringing the action Thus permitting it to be sustained by improper im-proper evidence not only decided the main issue in favor of plaintiff but evidently was the cause of the extravagant and excessive damages which were found in this case THE DAMAGES IV THIS CASE WEBE EXCESSIVE EX-CESSIVE Here was a man suing for libel whose character for truth and veracity and whose character for cKastity were shown to be worthless in the whole community and vicinity where he lived Himself putting it at issue knowing that the question would be raised coming prepared as far as he could to meet it could find hardly a man in the whole commuity to sustain him The defendant showed that it had ample justification for believing true the statement state-ment publishedin the paper that the statement had been made by the girl herself under circumstances which would lead every honestminded man to believe be-lieve that it was true And yet with all these facts the jury go out and reader this exorbitant and outrageous verdict which shows that the jury were biased fay something either by some improper influence out of court or improper testimony in court It is a disgrace to justice to allow such a verdict to stand The court erred in charging the jury that they should receive the testimony testi-mony of the witness Elizabeth Grant with caution They should scrutinize it carefully The jury were the exclusive judges of the deportment deport-ment and bearing of witnesses It was enough to call their attention to these things without expressly singling out this witness The unfortunate condition condi-tion of the witness her method and manner of testifying were evidently distinctly called to the attention of the jury without the courts adding his argument in favor of disregarding and discardin her evidence To be stated thus in the charge had the effect of an argument by the court jThe court erred in charging the jury that they might take into consideration considera-tion the fact that the defendant had alleged the charged to be true iu its answer and attempted to prove them true on this trial as enhancing damages dam-ages and evidence of malice unless you believe from the evidence that the allegation of the truth of such charges was made in good faith and with reasonable rea-sonable expectationof proving them and such attempt prove was also made with a like expectation and in good faith THERE WAS NO EVIDENCE 1 before the jury to warrant any finding of bad faith The occurrence had taken place The plaintiff had been arrested The girl had made these charges and to submit to the jury j that there was no evidence upon which they could find that the defendant was acting in bad I faith was permitting them to find a fact for which no evidence had been introduced I in-troduced The court refused to charge in the fourth request that it was not necessary neces-sary to complete justification for the defendant to prove true the parts of the libel not1 themselves libelous This charge was not given in substance What g ood reason can be given for its refusal In its absence the jury might infer that all the details of the arrest and other immaterial facts must be proven The court erred in not granting anew a-new trial The plaintiff in his rebutting rebut-ting defense attempted to corroborate this statement by saying that once Price was in the house at the time the girl was there i and to sustain that corroboration called as a witness Hannah Bradshaw who testified to seeing him coming away from the house She did not testify that it was Price but she testified to a man meeting meet-ing another witness under circumstances circum-stances which led the jury to infer that it was Price After the verdict was rendered in this case it was found Hannah Bradshaw HAD BEEN HIRED BY THE PLAINTIdF to testify to that effect and he expected her to testify to it in stronger language She stated that her testimony in that regard was talus and the affidavits disclosed the manner and methods of plaintiff in procuring his testimony Could that evidence have been produced pro-duced upon tho trial it would have been vital and destroyed the alleged rebuttal For that reason a new trial should have been granted JUDGE POWERS followed in behalf of the plaintiff and respondent It seemed to him that his brother Brown had drawn largely upon his imagination He claimed that no new evidence had been adduced that would justify jury in reversing the verdict founJaeretofore The damages given were hot excessive There was nothing of passion or prejudice visible in the actions of the jury He thought the judgment should be affirmed with costs JUDGE SUTHERLAND followed for THE HERALD The Court erred in making the defendant prove more than was charged in the article alleged to be libelous The charge that I the Court did give to the jury was misleading mis-leading There was TIlE REMARKABLE OMISSION with all respect to the Third District Court to tell tbe jnry just what the libelous li-belous part of the article was It gave the jury a ganeral idea that they were to consider that a rape had been charged We insisted in the trial below be-low that it was only necessary to show that so far as it stated facts they were true The charge was merely what the facts would justify and it would not be any more serious even though an erroneous erro-neous name had been applied to it The outrage complained of was analagons to rape and I think the jury would have been justified in finding that a rape bad been committed The record shows that the girl Grant made complaint even though she did omit the details The court below limited evidence as to Lowes bad character and allowed him to put in evidence to prove it good The evidence as to Lowes good reputation repu-tation in Ogden should not have been admitted THE QUESTION AS TO GENERAL REPUTATION REPUTA-TION must be confined to the neighborhood where he lives there only is he generally gener-ally known If he goes to Ogden to trade he is simply known there as abrader a-brader The reputation of the man attacked at-tacked by a multitude of witnesses was supported only by those who know him casually The court below erroneously warned the jury to receive the testimony tes-timony of the girl Lizzie Grant with caution under our statute the court is required to inform the jury that they are the sole judges of the credibility credi-bility of the witness when the court goes beyond this and singles out any witness he goes beyond his duty beyond the purpose of the statute and interferes withthe functions of the jury The court erred in enhancing damages dam-ages An attorney in court deals with the reputation and character of witnesses wit-nesses and he is not held for it save when the statement is actually malicious malic-ious There is no reason why an attempt at justification should enhance damages dam-ages When put into the pleadings it should not be taken as enhancing damages dam-ages If there was proof sufficient to entitle the judge to submit the case to the jury IT WAS RIDICULOUS in the next breath to talk about enhancing enhanc-ing damages because of a plea of justification justifi-cation There was an attempt and a bona fide attempt to prove a justification justifica-tion If there were no other errors and we say they were many this error alone necessitates reversal of the judgment judg-ment The court erred in reusing a new trial on the newlydiscovered evidence It was not as has been claimed impeaching im-peaching testimony it showed that the verdict nad been obtained by fraud and subornation because the witness Hannah Han-nah Bradshaw testified that she had been offered 1000 to testify to what she did testify to and which had been written out for her This closed the arguments and the matter was taken under advisement |