Page:Dakota Territory Reports.djvu/488

Rh Yes; and in the interest of the " newspaper press." For by section 316, that Code declares that " no reporter, editor, or proprietor of any newspaper, is liable to any prosecution for a fair and true report of any judicial, legislative, or other public official proceedings, or of any statement, speech, argument, or debate in the course of the same, except upon proof of malice in making such report, which shall in no case be implied from the mere fact of publication."

Is this privilege expressly extended to reporters, editors, and proprietors of newspapers — plain and clear — or is it not?

Transpose it and see. For a fair and true report of any judicial, legislative, or other public official proceedings, or of any statement, speech, argument, or debate in the course of the same, no reporter, editor, or proprietor of any newspaper, is liable to any prosecution. The non-liability for such fair and true report has one exception, to-wit: except upon proof of malice in making such report, etc.

By section 317, it is prescribed that libelous remarks or comments connected with matter privileged by the last section (to-wit, section 316,) "receive no privilege by reason of their being so connected."

But what if such report in a newspaper should be neither fair nor true? What if it should be false ?

These things are for you to inquire into and determine.

All the authorities quoted agree, I believe, that malice on the part of a publisher of a paper, is conclusively presumed, or inferred, if the publications are false.

In this case you have, I repeat, the right to determine the law and the facts. In case of a reasonable doubt as to whether the guilt of the defendants is satisfactorily shown, they are entitled to be acquitted. But the doubt must be reasonable, and must not spring merely from a wish or desire to acquit irrespective of the law and the evidence.

P. C. Shannon, Judge.

After being out all night the jury came in and, being called, their foreman presented the following paper, to-wit:

To His Honor, Judge Shannon:—

Will you please answer a few questions and oblige this jury, as we cannot agree: