The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1886-06-29

instruction VI is, ''The want of probable
cause cannot be implied. It must appear by
proof, but malice may be implied from want
OF probable cause when the latter is proven. /"
The Court charged, 'fWant Of probable cause
must be proven by plaintiff. 1t cannot be in
ferred."
Proof Of malice need not be direct 1t may
be inferred from circumstances. Ifthere were
no probable cause, malice may be presumed" !"
We thiuk The charge covered the ground ex-
acily.
instruction VII is, "The defendant must
believe in good faith in the truth Of the charge
preferred by him against the plaintiff, and in
the plaintiffs guilt; this is essential to cstab-
lish reasonable and probable cause for the
criminal prosecution, and it is for the Jury to
determine what the defendants belief was, if
such belief existed in good faith, and whether
he had reasonable grounds for that belief; for
if lie formed his conclusion rashly and incon-
siderately, he is not warranted in acting on his
belief" The Jury were asked specially to say
whether from the facts, they found that de-
fendant was justified in believing that he had
probable and reasonable cause to arrest the
plaintiff, and they found that he was jus.
tilted.
As to instruction VIII, which reads: "De-
fendant cannot show that he acted under the
advice of magistrate or other person not
learned in the law"
As we have seen above, in considering the
second exception, the defendant did not
attempt to show that he was justified by act
ing upon the advice Of counsel, and il was
not claimed that officer Marcos advice iusti-
fed him.
instruction TX. "If the jury find from the
evidence that the defendant did not believe in
the truth of the charge which he was in
duced to make against the plaintiff. malice
may be inferred" This is instruction VII, put
conversely, and the jury under the instruction
given by the Court, found that the defendant
was justified in believing that probable cause
existed, etc.
Instruction Y. "Proof OF want of probable
cause will warrant a presumption of malice"
This is repetition of Instruction VI, aud our
observations thereon will apply to it.
Instruction XI 'The charge, which is
founded on the accuser's own knowle tlge, will
require proof TO that extent to warrant such a
charge, but where it rests on suspicion only,
such suspicion must be created by circum-
stance which satisfy cautious person." This
is, as we think, covered, so far as is neces-
sary, by the charge of the Court above given
in place Of Instructions IL, III, " and V,
asked for.
Instruction MI. IF circumstances of sus-
picion existed which might have been removed
by proper inquiry, and nc. inquiry at all was
made, it is evidence Of a want OF reasonable
and probable cause" To this the answer is
PLAIN. 4tis not shown that any inquiry, under
the circumstances, would have removed the
suspicion entertained by defendant.
A disposition not to investigate further, if
investigation would have removed the sus.
picion, might be malice, but it would not
show want Of probable cause, for that is
founded upon the suspicion
instruction XIII. "If the charge preferred
by the defendant against the plaintiff, was of
such nature and made under such circum-
stances that no well-intentoned person would
find criminal charge upon them, without as
certaining their truth or falsty, and the
means Of inquiry and ascertaining the truth
being within his reach, had he thought fit to
avail himself of such means, and the defend
aut failed to ascertain such truth or falsity,
then it will show that he was influenced by
malice" This is Objectionable in its form as
being argumehtative.
instruction XIV. "It is competent for the
jury to consider any doubt, which defendant
expressed about plaintiffs guilt, at the time
the charge was preferred by defendant, in de-
Gliding whether he believed in good faith, that
the plaintiff was guilty of the criminal charge"
This must refer to the conversation held be-
tween defendant and Marcos, and to which
the attention Of the jury was called by the
Court. 1t was left to them whether he ex-
pressed doubts as to plaintiffs guilt, and
whether the effect Of the whole conversation
was such as to prove or disprove the good
faith of the defendant in prefcrring the
charge.
Instruction XIV, is already disposed of,
supra.
The instructions asked for by Mr.. Hatch for
defendant, and which were asked by the
Court are as follows
First Anything which will create in the
mind of reasonable man the belief that a
felony existed, and that the party charged
was in any way concerned in it, is probable
cause.
Secondly. "Plaintiff must show malice on
part of defendant, or that he acted from i'm
proper motives"
Thirdly "If Waller had any reason, how
ever slight, to belief plaintiff guilty of rob
berry. plaintiff must then prove actual malice"
These are in consonance with the we'll set
tied principles controlling such cases, defining
probable cause, and that if it exists, malice
must be shown, and coupled with the other
instructions of the Court, were correct.
The Court has charged that "ii no prob
able cause be shown, malice might be pre-
sumed." 1t is claimed in addition that GER
tain expressions used by the Court in its
charge were improper comments on the test
imony and tended to prejudice the jury
against plaintiff, as follows:
"The plaintiff has not accounted for where
he was on the night of the theft" We are
referred to the testimony where plaintiff says
he was at the telephone, to receive orders for
the morning delivery of meat, till about half
past eight o'clock in the evening; locked up
shop at nine o'clock and went home. As the
robbery may have been committed at later
hour of the night, the remark of the Court
was justified. As to the other expression OBJ
iected to, that "thc plaintiff had not testified
that he did not steal the money" we under
stand that it arose in this way: The Court
said that if the jury found for the plaintiff,
and believed that he had made the charge
maiciously he would be entitled to sub
siantial damages; but if they thought the
plaintiff was guilty of the burglary they
could not give damages to the extent they
otherwise would. 1t was for the plaintiff to
show that the charge was false: And though lie
had been called as a witness he had not denied
his guilt or accounted for himself on the night
of the robbery. The plaintiff was not asked
if he had stolen The money and the record
therefore shows no specific denial of the
charge. We wish - say further, that
counsel should call the Courts attention to
specific portions of the charge objected to at
the conclusion, and lllus afford the Court an
opportunity of reviewing the language used:
Aud it is not fair to the & Cpurt to except gen.
orally to the charge and thereafter in the ex-
ceptions to single out special portions as OBJ
jectionable.
1t is finally objected by plaintiffs counsel
"that it wAfi improper for the Court to say
to tile jury tliat they might take into consider
alton the effect which actions of this nature
may have upon prosecution of crime"
The comment was made in this connection;
The Court said that ''bona fde prosecutors
we're entitled to protection and that in con-
sidering the question of damages they ought
to take into consideration the effect which
actions of this nature may have on prosecu-
tion for crime"
The Attorney-General was counsel for the
plaintiff. he is by law the public prosecutor;
and if be should appear as counsel TO sue for
damages in behalf Of parties Tor matters
e Al. Il