The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-02-15
4atraiian 6azette.
WEDNESDAY. FEBRUARY Is. 1882.
Supreme Court of the Hawaiian Isl ands
January Term. 1882.
THE KING VS.. W. NJ. GIBSON, DEMURRER.
Before McCally, j.

er oil Immigration, ETC., is treason 10 tht
State.
1t is not requisite in my opinion that the
letters be set forth.
because the alleged libellous words are
not libellous in law.
Taken with what is set forth in the libel the
words this is treason to the State by a so
called Minister of State may not charge
the statute crime of treason P. c. VI, s. /
Treason is hereby defined to be any plotting
or attempt to dethrone or destroy the King, OF
the levying Of war against the Kings Gov
/ eminent, etc, Sec. 5. To constitute The
levying Of war contemplated in the first sec
ton, it shall be requisite that the persons
! concerned therein be parties 10 some overt ac
| in or towards procuring or preparing force
etc.
Writing letters limiting immigration or dis.
couragiug general immigration may not b,
brought within the definition of an act o.
treason as above, and SO the words which form
/ the charge Of libel herein may not be con-
sidered as imputing such indictable offense.
The word treason " has however
secondary and non-technical use. Traitor
/ betrayal, treachery and treacherous ar,
/ similar words. They are all used to impor
! failure, neglect or violation OF duties, obliga.
| lions, trusts and interests by private person.
]
| persons Of official duties.
To say of an official that his conduct il
| treason to the State must he held to tend t,
! bring Him into disgrace, adherence, odiun
| hatred, contempt or ridicule, which is defined
! by our statute to be libel.
3.-Because, it is not charged that there wal
I 4 malicious publication.
| Sec. 3 of Oh. 80, Penal Code, being on
statute Of libel defines publishing libel to b.
! the maliciously putting of it into circulation.
Sec. enacts that malice is shown in respec
| to libel by making publication or communi.
/ eating it to others willfully and purposely t,
! the prejudice and injury of another. Hatret
| or il-will toward the party injured is no
essential to libel.
There must be legal malice in the publica-
! ton.
| The law presumes that one who publisher
! Of another that which ia deiamatory on it's fac,
does SO with the malicious intent which con
stituies libel Arch Or. Pleading 1896. 81
! the publication is libellous, malice is presum-
| ed trom the injurious act Com. VS. Bonnie
! Q Met. 4l2, also Smart VS.. Blanchard ~ n H
! 1877. Com VS.. Smelling Is Pickering 337
/ All authorities concur in this doctrine of tn,
| legal presumption Of malice.
Our statute of criminal practice 1876 Oh
]
offence shall be held insufficient FOR the wan
| Of any matter unnecessary to be proved
/ Neither is it necessary by the established
/ rules to aver matters which would mort
/ properly come from the other side or whicl
/ 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
substantive avermeut which is or may b,
established by legal presumption following
upon proof Of other facts and as the result o.
such proof, need not therefore be made in tn,
indictment, but that it relates to the mode Oh
necessity Of proof thereof
Sec 5 of our libel statute provides that il
every prosecution for writing or publishing
libel the defendant may give in evidence in his
defence upon the trial the truth OF the matter
contained in the publication charged to b,
hbelous. Provided however that such evil
dence shall not be deemed justification
unless it shall be further made to appear on
the trial that the matter was published with
good motives aud for jusufcabe ends.
This is the defence the words being de-
famatory or libelous 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 luslifabe 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 iudictmeut) he must show that it wa,
lot malicious. Per Shaw G. j 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, ius,ih-
able ends or privilege to maintain against III,
presumption that the publication was not
malicious would traverse no avermeut.
\ presumption of law dispenses with direci
proof of the thing presumed from certain facts
and that is all. 1t must be averred equally
when it is presumed from the proof OF Other
facts as wheR 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 ne 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 thar any dverment thereof was super
tuous but, citing cases, he says such
indictments were not maiujainable. III
any particular bad intention accompanying
the act be necessary to constitute it crime
such intention should be laid in the indict-
ment In many cases the allegation of intent
is 4 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, malicIously," etc, the offence must
be charged to have been SO committed other
wise the indictment will be bad. | Arch.
Grim. Pleading of Prac. 300.
When an act must be done with a particu-
lar intent in order TO render it criminal, an
evil intention must be averred upon the record
l Archbold, under the subject of technical
words, 303.
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 OF
implication whatsoever, and therefore in an
indictment for murder the omission Of the
words Of "malice aforethought" 4" is not sup
piled by the words feloniously murdered y
although the latter words imply them.
Archbold p. 29O. The illegality of the
publication must be averred by means of the
word malciously or some equivalent term.
Heardsi" Libel and Slander" with authori-
ties p. 3s2.
The intent is legally proved, that is pre-
sumed, by proofs of certain acts and then the
burden of proof lies on the defendant to
controvert the averment so supported by
presumption of law.
In this respect the statute of libel is most
explicit, the defendant may traverse the
charge of maliciOusly publishing which has
been presumptively established, by proofs oil
justification, but he must first be so Charged
The precedents of indictments as they are
complied in Train and Heards Precedents OF
of indictments, p. $50 ct seq. all set out a
malicious publishing" wickedly and mali
ciously did write and publish and cause and
procure to be written and published a certain
false, wicked malicious and scandalous libel
of and concerning" etc. p. 366.
The averment that the matter is malicious
is not sufficient without the averment that the
publication is malicious.
Publication without legal malice is not ar
offence, and the defendant is therefore moi
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