The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1882-01-14
THE LIBEL CASE.
REX as. w. NJ. GIBSON.

NGN % "s oSO
On Saturday the 18th inst, this case came
up again, when argument on the demurrer
was heard before the Court. A demurrer
is not common in criminal prosecution,
though frequent in civil suits. According
to Blackstone a demurrer is, "a stop at
some point in the p~leadings, and a resting
of the decision of the cause on that point /;
an issue on matter of law" h defence
raised the issue that malice had not been
set forth in the indictment, as the moving
cause of the alleged libel, n that without
averment of malice a libel would not hold
in law.
When the case was called E. Preston,
Esq, argued this point in a few words with
great clearness and force. There is a
forcible directness in his argument, that
strikes at the root of the matter-at the
weak point of his adversary. After
reading the demurrer (Which was pub
lished by us in ertenSO last week. he
proceeded to argue that the Introductory
portion of the indictment was useless, and
not applicable TO the subsequent charge.
Then the charging part of the indictment
referred to certain letters. These should
have been laid before the Court, SO that
lllC SOulG IA JUICY '" NhSAA SAAh
The words set forth: "This is treason by
a so-called Minister of State" were, he con-
tended, not libellous in themselves. Was it
treason d? Taking the. O.her sentences
together with this one, is it not treason in
the sense of a dereliction of duty and not the
crime of treason that is charged ? No allega-
ton of intent was made in this indictment,
and without an intent to Witty and injure
character, there was no offence. 1t might
have been alleged that there was an intent
to bring His Excellency into odium and
public contempt. The learned couns pro-
ceeded to refer to the wording of our Penal
Code, and to quote authorities in support of
his contentious. The substance of these
references and accompanying arguments is
given in the subjoined brief subsequently
handed i'll for the consideration of the
Court.
Penal Code, chap. ~, sec. } THE publish
ing of n libel is the maliciously putting of it into
circulation or the promulgating, exhibiting. or
distributing of it for the purpose of making it
known to others, &c
This Indictment does not allege that the de-
PENDANT maliciously published the alleged libel.
There should be nn averment that the de-
fendn"t maliciously published the matter but
any ,.uivalent expressions as wrongfully and
falsely, &c, Will, 1T seems, suthce.-Chltty on
Pleading, vol. l, p. 421.
The libel or words must be false, and the de-
c~laration always charges their falsIty but pro-
badly the words wrongfully or maliciously would
be sufficient, at least, If there were no demurrer.
-Chittv on Pleading, 10th Am. Ed, p. $40.
These allegations are wanting in this indict-
ment.
1t is said in Greenleaf on Evidence, vol. ), p.
&c." The Indictment in this offence (hbe)
forth the ibellous writing or act, the mali
cious intent, &c.'
Wharton's Precedents of Indictments and
Pleas, vol. J. p. 939 ct seq, gives a great number
CT forms Of indictments for libel, from the year
100 down to the present time, as used both in
England and the United States, and they all
contain the allegation of malice.
Malice is often a material ingredient in an
offence, and expressed particularly IN the detinl-
ton of it when this is the case, the indictment
must state the act TO be maliciOusly done, and
the malice rs well as the intent must be proved.
-Archbald's Criminal Practice, vol. l, p. 1874.
1t is not necessary to allege that the matter
published is false and such an allegation nesi
not be proved, though it be made on the record
but the i~llegality of the publication must be
ayerred by means of the word 'maIlclouslS'
or by some equivalent term.
Mr.. Preston, in conclusion said, that for
that was to be found on the face
of the indictment, the publication charged
was perfectly lawful and justifiable. This
was the first case of a prosecution against
a newspaper for libel that had come before
Court. He would ask the Court to
the law stringently to set
its face to q certain extent against any
stretching of the law. He asked that the
demurrer be declared good, and the defend
ant discharged accordingly.
At the close of Mr.. PrestOn's argument
Hartwell responded for the prose-
rution. This gentleman's pleading at the
bar i easy and fluent, with a pleasant
sonorous voice. He said that he agreed
with the learned counsel for the defence in
his desire that the law should not be
stretched. The first ground taken was that
the letters referred to in the indictment
should have been set out. The indictment