The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-02-15

l.-Becausc the letters are not set forth in
the Indictment.
The indictment is not based on the letters,
but upon what is (writtcn and published)
about the letters, and the charge that certain
language, cited therefrom, by the Commission
err of Immigration, ETC., is treason TO the
State.
1t is not requisite in my opinion that the
letters be set fortu.
because the alleged libellous words are
not libelous in law.
Taken with what is set forth in the libel the
words "this is treason to the State by So
called Minister of State " may not charge
the statute crime of treason p c. VI, 5. |.
Treason is hereby defined to be any plotting
or attempt to dethrone or destroy the King, or
the levying of war against the Kings Gov
ernment, etc, Sec. s. To constitute the
levying of war contemplated in the first sec
ton, it shall be requisite that the persons
concerned therein be parties TO some overt act
in or towards procuring or preparing force,
etc
Writing letters limiting immigration or dis
couraging 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 con-
uidered as imputing such indictable offense.
The word "treason" has however n
secondary and non-technical use. Traitor,
BETRAYAL, treachery aud treacherous are
similar words They are all used to Import
failure, neglect or violation OF duties, obliga-
tons, trusts and interests by private perrons
of private duties aud by official aud public
persons of official duties.
To say of an official that his conduct is
treason to the State must be held to tend to
bring him into disgrace, adherence, odinm,
hatred, contempt OF ridicule, which is defined
10y our statute to be libel.
3.-Because, it is not charged that there was
malicious publication.
See. of Oh. 80, Penal Code, being our
statute of libel defines publishing a libel TO be
the maicioudy putting Of it into circulation.
Sec. enacts that malice is shown in respect
to libel by making publication or commune
eating it to others wllfully and purposely TO
the prejudice and injury of another Hatred
or ill-wil toward the party injured is not
essential to libel.
There must be legal malice in the publica--
ton.
The law presumes that one who publishes
of another that which il defamatory ON its face
does SO with the malicious intent which con-
stitutes libel. Arch CIR Pleading 1896. "If
the publication is libellous, malice is presum-
ed FROM the injurious act Com. VS.. Bonner
Met 4l2, also Smart VS.. Blanchard ~ n II.
1877. Com VS.. Smelling Is Pickering 1871.
All authorities concur i'll this doctripe of the
legal presumption of malice.
Our statute of criminal practice 1876 Oh.
XII. Sec. Is provides, that no indictment for any
H.. hi 81,
of any matter unnecessary TO be proved.
Neither is it necessary by the established
rules to aver matters which would more
properly come from the other side or which
are implied by the facts and circumstances
alleged or which the law will presume
do not understand by this statute provis-
ion and by these rules of pleading that u
substantive averment which is or may be
established by legal presumption following
upon proof of other facts and as the result OF
such proof, need not therefore be made in the
indictment, but that it relates to the mode or
necessity of proof thereof.
Sec 5 of our libel siatnto provides that in
every prosecution for writing or publishing u
libel the defendant may give in evidence in his
defence upon the trial the truth Of the matter
contained in the publication charged to be
libelous. Provided however that such evil
dence shall not be deemed a justification,
unless it shall be further made to appear on
the trial that the matter was published with
good motives aud for justifcable ends.
This is the defence the words being de-
famatory or lbelous and having been pub
lished, first against the making of the libel,
that it is true and second against the pub
fishing, that it 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 it was
hot malicious. Per Shaw G. ]. in Com. VS.. Bon
ner, as above, after citing the Mass. statute
which is in the same words with our Sec. 5th
But 1t not having been SO averred in the
indictment his proofs of good motives, juslili-
able ends or privilege to maintain against the
presumption that the publication was not
malicious would traverse no avermert.
A presumption of law dispenses with direct
proof of the thing presumed from certain facts
and that is all. 1t must be averred equally
when it is presumed from tine proof OF other
facts as when required to be proved as
separate fact.
Criminal intent is legally presumed from
criminal acts but it is univeral rule 10 charge
intent as well as the acts done, and it would
not be sufficient to charge the acts without
charging the intent also. Lord Peterborough,
c. j. in The King VS.. Philip, says, it may
be said however that the criminal intent Was
necessarily implied from the publication aud
therefore that any averment thereof was super
fuous but, citing cases, he says such
indictments were not maintainable If
any particular bad intention accompanying
the act be necessary to constitute il crime
such intention should be laid in the indict-
ment. In many cases the allegation of intent
is merely formal one being no more than the
result and inference which the law draws
from the act itself, and which therefore re-
quires no proof but what the act itself
supplies. AS in the case of libels when the
fact of publication in question"
In an indictment upon statutes where the
definition of the offence contained in them
includes such adverbs as unlawfully,
wickedly, maliclously," ETC., the offence must
be charged to have been so committed other
wise the Indictment will be bad Arch.
Grim Pleading of Prac. 3OO
When an act must be done with particu-
lar intent in order to render it criminal, an
evil intention must be averred upon tie record.
/ Archbold, under the subject of technical
words, 3O3.
So the want Of direct allegation Of any
thing material in the description OF the
substance, nature or manner of the offence
cannot be supplied by any intendment or
implication whatsoever, and therefore in an
Indictment for murder the omission Of the
words of malice aforethought" g is not sup
piled by the words feloniously murdered "
although the latter words imply them. l
Archbold p. $50. The illegality of the
publication must be averred by means of the
word maliciousIy or some equivalent term.
Heards," Libel and SANDER" with authori-
tiei' p $50.
The intent is legally proved, that is pre-
sulned, by proofs of certain acts and then tue
burden Of proof lies on the defendant to
coatrovert the avernent 80 supported by
presumption Of law
In this respect the statute Of libel is most
explicit, tho defendant may traverse the
charge of maliciousiy publishing which has
been presumpIively established, by proofs of