The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-11-02

hbellous any printed public alton
which directly tends to injure the
fame, reputation or good name Of
another person, and 10 bring him into
disgrace, adherence, odium, hatred,
contempt or ridicGle, or to cause
him TO be excluded from society"
This statute clearly does not confne
lIbels 10 publications which impute
criminal offense. And it was so
held by Mr. Justice McCully in Rex
5s Gibson, 6 Haw., 30 See also .Stale
&C. Spar, - r. l., 324.
II is not for Us to say whether the
publication in question directly tends
to injure the reputation of Claus
Spreckels and to bring him into'dis-
grace, odium, etc, nor Is 1t for as 10
say just what the publication was in
tended or understood to mean. We
have only TO say whether, as read in
the light of properly averred extrinsic
facts necessary to explain its mean
ing, it is capable of libellous mean
ing, and whether such extrinsic facts
are properly averred. 1t is for the
jury to pass upon the actual meaning
of the words, and to say whether
they are In fact libellous unless the
Court must find by an inspection of
the Indictment that the publication
in the light of properly averred ex-
trinsic facts is incapable of libel
lous meaning. Blagg Is. .Sturt, 10 q.
b. 500.
We think that the words in ques-
ton are capable of libellous mean
ing. They may, in view of possible
extrinsic facts known to the reader,
be taken to impute to Claus Spreckels
the offense of instigating, or conspir
ing with, others to commit seditious
offense. as set forth in the iunuendoes
in the first count, or the offense of in
stigatiDg, or conspiring with, others
to commit the offense of treason, as
set forth in the innuendoes in the
second count, or they may be taken
to impute the doing of acts, hostile
are not covered by any penal statute.
1t is for the jury to say whether the
true meaning of the words has been
attached to them in the innuendoes.
Being of the opinion that the pub
LEGATION is susceptible of libelous
meaning in the light of possible ex-
trinsic facts, it remains for US to say
whether such facts are properly
averred. Where words are used in
their ordinary sense, no extrinsic
facts need be averred to show their
meaning, but where, as In the pres
ent case, they are alleged to be used,
allegoricaliy, In sense which could
not be understood but for the knowl
edge of certain extrinsic facts, it is
necessary to aver those facts in order
to show on the face of the indict
ment the meaning of the words. Ii
the words standing alone are ambig
uous, there must be in general three
things to show their true meaning,
0) averments of extrinsic facts, which
explain the meaning of the words,
~ cOllOquia, connecting the words
with those facts, and 81 innuendoes,
pointing out the meaning of the
words when read in the light Of those
facts. The publication In question is
ambiguous. Read in their literal
sense, the words do not refer to Claus
Spreckels, nor are they of libelous
nature. Certain extrinsic facts are
averred to show that the words refer
to Claus Spreckels, and there is
cOlLoquium that the words were pub
lished of and concerning Claus
Spreckels, but there is no colloquium
that they were published of and con-
corning the extrinsic facts set forth
in the averments, nor are there any
averments of extrinsic facts, or col
loquia, to show that the words are
used in libellous sense. Innuendoes
alone are not sufficient; they may ex-
plain what already appears upon the
record as a ground for the explana
ton, but they cannot add to, or alter
the sense of the expressions as usual
ly understood. The publication in
question is allegorical or ambiguous
as to other matters, for instance, as
to the country and the political
parties or situation in the county of
which, as we'll as to the person of
whom, it is written. There should
be averments and cOllOquia to explain
the categorical language. If the
indictment contained proper aver
ments and cOIOquiG to show that
the meaning set forth in the
innuendoes might reasonably be
put upon the words of the publica-
llOuy IL WOui4 no III IbO Jul w
say whether the averments are estab
lished by the evidence, whether the
collOquia are true, and whether the
innuendoes express the real meaning
of the words. See Rer rs Horne,
Cowp. 672; Vdn Vec1ten Us Hopkins, 5
Johns. 211; Dir as. Woodland, II
Conn. 262; Emery rs. Prescott, 81 Me.
3S9; Hoare rs. SilCerIock, u AID. & E.
n. S. 624.
Counsel for the prosecution at the
hearing before this Court moved for
leave to amend the Indictment by in
sorting certain c0lloquia which would
at least to some extent supply the
deficiencies above referred to, but
this Court cannot properly grant
such motion. We think that the de-
murrer should be sustained, but
that, under the provisions of Section
SO of the Criminal Practice Act, the
the Circuit Court may allow an
amendment to the indictment, by the
insertion of proper averments and
coIiOquia
F. M. Hatch for the prosecution;
A. 5. Hartwell for defendant.
Honolulu, October %, 1893.
THE T~STTAT DENsT my