The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1882-01-14

letters was ibelIous. The article cited ex-
planned itself. The indictment was ia fact
pEefus dt4ue Totundus it recited defend
ants W ianguage-the only words which
were charged to be libeIious. The learned
counsefs subsequent argument is repeated
ana extended in the brief given below. for
the preparation of which the Court granted
a delay till the following Wednesday. He
concluded by saying that the substance of
his answer was that the averment of
malice was an immaterial one, but that if
the Court should hold that some averment
OF malice was necessary, he contended that
the words of the Indictment were, by their
Implication, sufficient IN this respect.
The following is Mr.. HartwelPs brief as
deliy cred to the Court
The demurrer admits, for the purpose of this
argument the truth of all the facts averrei in
the indictment, with their proper and necessary
amendment, and all their legitimate or legal con-
sequences. The Court is asked TO say whether
a criminal libel Is committed by the defendant
IN having caused TO be printed and published in
the newspaper called the PACIFIC COMMERCIAL
ADVERTISER, IN Honolulu, the words recited in
the libel Of and concerning W. y. Armstrong,
then the Commissioner of Immigration for the
Hawaiian Government and also in, then and
there, and thereupOu, and in the same number
of said newspaper having printed and published,
VIZ Cdu9cu anu procured 10 De printed ana pub
lished of and concerning the same official, and
concerning his official conduct, 1.-the false,
scandalous, and malicious defamatory libel"
that the writing of the official letters referred to
In the said first printed and published statement
- Is treason TO the State " by him the said VIM.
n. Armstrong as such Commissioner and also
that the above was printed and published, &c,
against the peace, " and " contrary to the form
of the statute in such case made and provided"
The defendants counsel claim that the in
dictment is insufficient First, because it does
not cite said Letters second, because the alleged
hbellous words are not lbellous in law third.
because the Indictment does not aver the intent
of the printing or publication of the alleged
libel.
1. 1t is unnecessary to recite the said letters,
because the printed statement which is recited
undertakes to set forth their purport, on the
strength of which the imputation of treason is
made by the defendant.
2. 1t is libellous by all law to print ar publish
an imPutation of an indictable offence against
any person or to print or publish of any official
words which directly tend to affect injuriouSly
his official position. 1t is immaterial whether
such injury is accomplished or not. Treason Is
in plain words imputed by the words charged,
and those words tend directly to injure the
official position of the Commissioner. They have
no other possible meaning or tendency.
3. AS to the intent of printing or publishing,
or causing or procuring to be printed or pub
ished such false, scandalous, and malicious
defamatory libel, of and concerning said VIM.
n. Armstrong, Commissioner of immigration
for this Government, and of and concerning his
official conduct as such Commissioner, it is sub
~mitted-First: That the intent is immaterial,
since good intent would be no defence, and
could not be shown as a defence to such q libel,
am being MINISTERIAL need not be averred.
Sc md: That the intent is sufficiently charged
II he averments that the defendant printed and
J Olished, and caused and procured to be printed
AID published in q newspaper Inch false, scan
dalou0 and malicious 6afamatDry libel aOaiDSf
said official, and with reference to his official
conduct and that this was done against the
peace and contrary to the form of the statute"
The intent or motive if immaterial need not be
averred. "No indictment for any offence shall
be held insufficient for want of the averment of
any matter unnecessary to be proved. Acts of
1876, p. 81, sec. Is. This enacts in regard to an
indictment what has always been the common
law with reference TO Gbels in which words are
Hbellous per Sc, or are clearly directed against a
Government official in his official capacity.
In l Vim. Abr, p. 533, it is stated that error
was brought in an action for SANDER. because
1t was not expressed in the declaration suod
maIitiose dirt those words. and ~adjudged that
there is no error, for the words themselves are
malicious and slanderous." 1t is never neces-
sary 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.-Stephens on Pleading,
PIP. $50, 353, 354.
1.-The law presumes that one who publishes
Ol dHOlu0I ludl WHICH IL utiiilslIOTN On us luce
does so with the malicious intent which consti-
tutes libel. Arch. Or. Pleading, 1896.
"If a publication is libellous, malice is pre-
sumed.'-Com. Us. Bonney, 8 Met, 412 2 Met,
1872.
eff the publication is false, the law implies
malice from the publication, although in a news
paper."-Smal ps. Blanchard. AZ n. H, 1877.
"If the tendency of the publication was in
furious to the plaintiff, the law will presume
that the defendant, by publishing it. intended to
produce the injury which it was calculated to
effect. If it had that tendency, there can be no
doubt that it was II libel. Per Peterborough,
C. j., in Haire Us. Wilson, 8 b. and c., 654.
Courts have held parties criminal by reason
of an implied evil intent in cases of libel to a
degree not witnessed perhaps under any other
title of criminal law. - 2 Bish. Grim. Law, soc.
S12.
1T NAV be said, however, that in that case
rex rs. Horne) the criminal intent was neces-
sarily implied from the publication, and there
fore any averment thereof was superhuous. -
Per Peterborough, c. j., in Rex Us. Phillips, 6
East, 473.
I'm many cases the. allegation of intent is
merely a formal one, being no more than the
result and inference which the law draws from
the act itself, and which therefore requires no
proof but what the act itself supplies-as in
cases of libel, where the fact of publication is
not in question. Rex. Us. Phillips, supra.
"Where the language is actionable, and the
publication does not appear to be on any occa-
sion which renders it privileged, there the Ian
Rutpe Is presumed 10 De AdlSo IL HlhilClOubi
i.s., published without lawful excuse
bend on SANDER and Libel. sec. 1913.
The published matters being hbellOus on their
face, malice is inferred in law, unless the publ
cation is privileged.-White Us. Nichols, 3 How,
266.
THE publisher of a newspaper must. at his
peril, see that the supervision of his business is
such as to exclude all libellous publications, and
he is responsible, though one is made without
his knowledge, and notwithstanding stringent
regulations made by himself which, if observed,
would have prevented it Cooley on TortS,
p. 1875.
"Some cases are apparent exceptions to the
general rule. Thus We have seen that malice Is
said TO be an ingredient in the wrongs of SANDER
and libel. But in most cases the exception is
only apparent. If the damaging imputatiOn il
false, the law supplies the malice, and neither
will require it to be proved, nor give immunity
because it is disproved. That malice is an ele-
ment of the wrong in a case in which proof of it
is unimportant must be purely a legal fiction"
The cases in the law of Islander and libel in