The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1882-01-28
H LIBEL CASE.

gave his decision on the demurrer in the
case Rex as. Gibson, as follows
Three points have been made by de-
PENDANTS counsel in support of this de-
murrer.
/. Because the letters are not set forth in the
indictment. The indictment is not based on the
letters, but upon what is written and) published
about the letters and the charge that certain
language cited therefrom by the Commissioner
of Immigration, &c, is treason to the State. 1t
is not requisite. in my opinion, that the letters
be set forth.
2. Because the alleged libellous words are not
hbellous in law. Taking what Is set forth In the
libel, the words . this is treason to the State by
u so-called Minister of State " may not charge
the statute crime of treason-P. c. VI, sec. /.
Treason is hereby defined To be any plotting or
attempt to dethrone or destroy the King, or the
levying of war against the Kings Government,
&c.-Sec. 3. To constitute the levying of war
in the first section, it shall be
requisite that the persons concerned therein be
parties to some overt act in or towards procuring
or preparing force, ne.
Writing letters limiting immigration, or discour-
aging general immigration, may not be brought
within the definition of an act of treason as
above, and so the words which form the charge
of libel herein may not be considered as imput-
ing such indictable offense.
The word " treason " has, however, a second
AIRY and non-technical use. Traitor, betrayal,
treachery, and treacherous are similar words.
They all are USED 10 import failure, neglect, or
violation of duties, obligations, trusts, and in
terests by private persons OF private duties, and
by official and public persons of official duties.
To say of an official that that his conduct is
treason to the State must be held to bring him
into disgrace, adherence, Odium, hatred, con-
tempt or ridicule, which is defined by our statute
to be libel.
3. Because it is not charged that there was a
malicious publication. Sec. 3 of CHI. 80, Penal
Code, being our statute of libel, defines publish
ing a libel to be the maliciously putting of it
into circulation. Sec. 4 enactS that malice Is
shown in respect to libel by making a publica-
ton, or communicating it to others, wilfully and
purposely to the prejudice and injury of another.
Hatred or ill-will toward the party injured is not
essential. to libel. There must be legal malice
in the publication.
The law presumes that one who publishes of
another that which is defamatory on its face
does SO with the malicious intent which constl-
tutes hbel.-Arch. Or. Pleading, 1896. If the
publication is libeiIous, malice is presumed from
the injurious act" Com. VS.. Bonner, 8 Met,
412 also SmIrt VS.. Blanchard, 42 n. H., 1877 !;
Com. VS.. Smelling, 10 Pickering, 337. All
authorities concur in this doctrine of the legal
presumption of malice.
Our statute of criminal practice, 1876 CHI, sec.
Is, provides that no indictment for any offence
shall be held insufficient for the want of any
matter unnecessary to be proved. Neither is it
necessary by the established rates of pleading to
aver matters winch would more properly come
from the other Side, or which are implied by the
facts and clrcunSt tlcei alleged, u which the
law will presume. / do not dnit.-atnd by this
statute prov.sI,.I, and ~ those .uie> II pleading
that IL suDaIInt- Tr aveIInent wnI'4l ~. or may be,
established ID, icgt pr,sdIi ruuL iuIioWing upon
proof of utiIe- Iuc;S, ana ~ Tie result OF such
proof, need not Therefore b. male IA ;hr lndict-
ment, but that II relates 10 the nIod% or necessity
of proof thereof.
Section ) OF uur libel statute provides that
every prosecution TOR writinS ~ Publishing a
libel the defendant may give IN evidence in his
defence upon the trial tar truth 81 ihc matter
contained III the publication cntrs-i t. be libel
GUS. Provided, however, that such evidence
shall not be deemed n justification, unless it
shall be further made to appear on the trial that
the matter WAS published with good motives,
and for justifiable ends.
is the defence the wolds being intama-
tory or hbellous, and having been published,
first against the making of the libel, that 1t Is
true and second, against the publishing, that 1t
is true, or published with good motives, and for
justifable ends-that is to say, not with legal
malice.
The burden of proof is on the defendant. AS
to publication (which is all that is charged in
this indictment), he must show that il was not
maliciOus.-Per Shaw, CD, IN Com. VS.. Bonner,
as above after citing the Mass. statute, which
is in the same words with our sec. D. But 1t not
having been so averred in the Indictment, his
proofs of good motives, justlfa5le ends, or
privilege to maintain against the presumption
that the publication was not malicious, would
traverse no averment. A presumption Of law
dispenses with direct proof of the thing pre-
sumed from certain facts, and that is all. 1t
must be averred equally when it is presumed
from the proof of other facts as when required
to be proved as Il separate fact.
Criminal intent is legally presumed from
criminal acts but il Is L universal rule to charge
intent as we'll as the acts done, and it would not
be sufficient to charge acts without charging the
intent also. Lord Ellenborough, CD, in the
King VS.. Philip, says 1T may be said, how
ever, that the criminal intent was necessarily
implied from the publication, and therefore that
any averment thereof was superhuous.
but. citing cases, he saws such indictments were
not malntainable. II any particular
bad intention accompanying the act be necessary
to constitute it a crime, such intention should
be laid in the Indictment In many cases the
of intent is a merely formal one, being
no more than the result and inference which the
law draws from the act itself, and which there
fore requires no proof but what the act itself
supplies. As in the case of lihels, when the
fact of publication is not Ill question
On an indictment upon statutes where the
of the offeuse contained in them in
cludes such adverbs as "~unlawfully,' g wicked
w." maliciously, &c, the offense must be
charged to have been SO committed, otherwise
the Indictment will be bad Archbold Grim.
Pleading of Prac., 800. When an act must be
done with a particular intent, in order to render
it criminal, an evil intention must be averred
upon the record.-1 Archbold, under the subject
of technical words, BOB.
So the want of a direct allegation of anything
material in the description of the substance,
nature, or manner of the otfense cannot be sup
piled by any intendment or implication what
soever: and therefore, in an indictment for
murder. the omission of the words 'of malice
aforethought is not supplied by the words
3. feloniously murdered, - although the latter
words imply them.-1 Archbold, p. $50.
The iliegality of The publication must be
averred by means of the word maliciOusly, or
some equivalent terl.-Heards' Libel and
SANDER" with authorities. p. 3S2.
The intent is legally proved, that Is presumed.
by proof of certain acts, and then tke burden of
proof lies on the defendant to controvert the
lverment so supported by presumption of law.
In this respect the statute Of iibe!. Is most ex-
olicit ; the defendant may traverse the charge of
naliciously publishing which has been presumps