Page:Dakota Territory Reports.djvu/489

474 1st. Are we compelled by our oaths, as jurors, to return a verdict in favor of plaintiff, if the statements made in said publication are proven to be untrue, notwithstanding the article states that they are so informed, and they feel it their duty to make public?

2d. Can we return a verdict in favor of defendants if we believe these statements were untrue, and were made without malice or willfully intended to injure the parties mentioned in said publication, but for the public good?

3d. Was it necessary for the defendants to prove that they were in possession of facts to sustain their charge?

J. C. English, Foreman.

Accordingly on Monday, the 24th day of December, the Court gave the following written charge to the jury, being in compliance with section 384, of Code of Criminal Procedure, which makes it obligatory upon the Court to give the jury further instructions when requested so to do:

Gentlemen of the Jury:—

Your written requests for further instructions, have imposed an unsought duty on me, and have necessitated a further examination of the law of libel as it exists in this Territory.

According to our Code, the freedom of the press consists in publishing the truth with good motives and for justifiable ends; and in publishing all such fair and true reports as are embraced within section 316.

Formerly, in criminal prosecutions, the truth could not be pleaded in defense. Hence arose the common maxim: "The greater the truth the greater the libel," which subjected the old laws on this subject to a great deal of ridicule and contempt.

Happily our law, following modern State constitutional provisions and examples, makes the truth a defense when published with the motives and for the ends already named.

Broadly viewed, proof of the truth of the charge alone is not sufficient in every case; for there may be cases where the matter published, because of its obscenity or blasphemy, is not lit to be spread before the public, whether true or false.

In my first charge, I quoted section 316 of our Penal Code, in reference to the privileges of reporters, editors, or proprietors of newspapers. With this exception of non-liability for a fair and true report of such proceedings, etc., our Code