The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-01-14

ter to be distributed and delivered to divers
residents Of Honolulu, and other persons resid-
ing in this Kingdom" All Of which actions
and doings by the defendants. the plaintiff
alleges were done in contravention of his pri--
waite rights under the laws, and to the damage
Of the plaintiff TO the amount Of $50, 900.
The first question to be considered is the
nature of the action. The Chief Justice held
that it is not and cannot be treated as an action
for civil damages for libel. On further OK
animation of the complaint and the law we
think that under our statute the holding Of the
Chief Justice was crror.asyss
Our statute declares 1Section /, Penal Code)
that "a libel is publication in writing, print,
or by picture, statue, sign, or a representa-
ton other than by words merely spoken which
directly tend to injure the fame, reputation or
good name of another person, and to bring him
into disgrace, abhorreuce, odIum, hatred, con-
tempt or ridicule, or 10 cause him 10 be ex-
cluded from society" Section 5 declares "In
every prosecution for writing or publishing a
| libel, tho defendant may give in evidence, in
his defence upon the trial, the truth of the
matter contained in the publication charged TO
be libcllous: Provided, however, that such
evidence shall not be deemed justification,
unless it shall be further made 10 appear on
| the trial that the matter was published with
good motives and for justifable ends"
Therefore in an indictment for libel, what
ever may be usual, it is not necessary, to
allege that the matter is false. Falsity is pre-
sumed until it is shown to be true, aud then it
| is not a justification unless it appears in the
| case that the publication was made with good
motives and for justifiable ends.
The principle that in criminal prosecutions
for a libel the truth was no defence unless
published with good motives and for justifable
cnds, is now substantially matter Of statute in
England: and Vic. See Oogers on Libel
and SIdnder, p. 800; and is almost universally
the law in America. by statute, or constitution,
or decision
Prior 10 the statute of Vic. in England, since
the reign OF James the ], the truth was no JUS
LITIGATION in criminal case. Kent TO-.
But in civil cases for libel or Islander, for
over hundred years, the law has been settled
everywhere, that the truth when pleaded and
proved is defence, whether the damages
claimed are general or special, aud however
malicious the publication may have been
See Kent, pages 10 and 25.
0dgers on Libel and SANDER, pages 100 and
2s9.
The reason of the distinction is apparent.
| Criminal punishment is attached to libel be-
cause it is believed to tend 10 breach of the
peace. SANDER has never been SO punished
because from its comparatively ephemeral ma
ture it was held not to endanger such breach.
In civil actions for a libel, as the very action
brought shows that no breach of the peace is
likely or intended, the truth is defence. 2
Kent, pages lG, 10.
In actions for civil damages for a libe. in
Gritty and the well settled English precedents,
ILL., Al a. hi q Sal
In the proofs at the trial however, falsity
need not be first shown though averred but
truth comes in as a defence, and properly, the
averment of falsity should not be required, nor
is it required here.
See 0dgcrs on Libd and SANDER, p. 1859.
Our statute defines libel to be publica-
ton in writing. etc., which directly tends to
injure the fame, reputation or good name of
another person, and TO bring him into dis
grace, etc.
1t is libel if it tends to disgrace person,
and TO injure him in either of the particulars
named. Proof OF injury in all these respects
is not necessary nor need it be alleged.
The allegation in the case at bar is Of injury
TO the character, the feelings and the reputa-
ton Of the plaintiff The publication as quoted
in the complaint is manifcstly libellous in its
nature, and the time aud manner Of its publ
cation as averrcd, after twenty years of silence,
against merchant, private citizen, made ii
libel, punishable under our statute whether
true or false.
The complaint positively aiirms that the
article published is true, but the other state =
ments alleged, if taken as true show libel of
which defendants might be convicted on i'll
dctment The defendants have the benefit Of
the allegations in the complaint as though
written in the answer; and upon these and
upon all the facts set forth, there can be no
recovery in this action unless we overturn the
well settled authorities of hundred years.
Whether published matter which is counted
on, is a libel depends upon its nature, and not
upon the kind OF action in which it is set forth
or upon its truth or falsehood
1t is also held that an injunction to restrain
the publication of libel will not lie except
after verdict of a jury declaring the publication
to be libelous.
See Odgers on Libel and SANDER, pages 19
and 10, and ca SEES there cited
If this action therefore were brought against
the defendants to restrain the further publica-
ton of what manfestly appears in itself to be
a libel, it could not on that ground prevail; but
it may be, under the authorities quoted by the
Chief Justice, and by reason of the plaintiff
property in the substance Of the writing, as its
|
however obtained, might, because of such
property he restrained from its further publ
cation.
The publication however being made, thai
act done, as we have shown, constitutes it :
libel, and the damages thereby occurring are
! damages in consequence of libel, and eanno
, be otherwise recovered for. Those damages
cannot be severed, and cIassed partly as in
juries by libel, and partly by unauthorized
publication of private letter, which nigh
have been enjoired.
For these reasons the decision below mus
DC reversed and the demurrer sustained.
CoScURRING OPINION OF MIR. JUSTICE
McULLY
In this matter l arrive at the same conclu.
sion with Mr.. Justice Austin that the dcmurre
should be sustained, and had writteHmy opn
ion at somewhat greater length than is her,