¶1I concur in this opinion, so far as it holds that the forged letters sh ould have been admitted in evidence, in mitigation of damages, but not as to what is said in regard to the instruction.
¶2Mr. Justice Craig dissenting.
¶3The libel published in defendant’s newspaper was a great wrong to die character of plaintiff. Its publication can not be justified or palliated for any reason or for any cause. It was net legitimate news fit for publication, and if defendant wished to permit the scandalous matter to appear in the columns of his paper, he- ought, in justice to the parties accused, to have first ascertained whether it was true or false, which he could have done in a few hours by the use of the telegrs.ph. Not to do so shows a reckless disregard of the rights and feelings of innocent parties that might be affected by the publication of such defamatory matter.
¶4That part of the opinion by Mr. Justice Breese which condemns an instruction given for plaintiff is not concurred in by any four members of the court, and hence the views expressed have no sanction from the court. The only cause for reversing the judgment, which has the sanction of a majority of the court, is that the court below erred in excluding from the jury certain letters received by defendant, which it is said contain the substance of the libelous publication. The fact such letters were received was proven, and that the article published was based on them was also proven, and that was all defendant was entitled to prove in that connection. No other legitimate use could be made of the letters, and indeed the rulings of the court in that respect were quite favorable to defendant.
¶5It must be conceded that, under the former decisions of this court, if the signatures to the letters were genuine, or there had been no signature at all to them, such letters would not have been admissible in evidence. If they would tend to prove anything, it would be the truth of the libel, and that is not allowable under the plea of not guilty. How the fact the signatures to the letters may be forgeries can change the rule of law on this subject is to me inexplicable. The introduction and reading of such letters, had the court permitted it, to the jury in the presence of the court, would have been simply a repetition of the libel. Conceding the signatures to the letters were forgeries, the contents were nevertheless libelous and defamatory in the highest degree.
¶6Believing there is no error in the record, the judgment ought to be affirmed.
¶7Mr. Justice Sheldon concurs with Mr. Justice Scott.