The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-08-07


ever, 10 was error to refuse defendants
evidence of the truth of the defama-
tory matter, they having pleaded the
general issue but not Justification.
OPINION OF THE COURT BY JUDD, c. J.
In this case the plaintiff obtained a
verdict and a bill Of exceptions was
allowed the defendants. The case was
tried in the Circuit Court, First Cir
cult, il being an action of trespass on
the case in which plaintiff claimed
damages of the defendant Corporation
and its manager for an alleged libel
published in the Pacific Commercial
Advertiser, a newspaper printed and
published by the said defendants, in
the issue Of November 80, 1898.
The alleged defamatory words taken
from the declaration and emitting the
inuendoes are as follows: "GomeZ
and his dope. The Portuguese jeweler
arrested with opium in his possession.
j. T.. Gomez, the jeweler, was arrest
ed last evening and charged with hav-
ing opium in his possession. He was
afterwards released on bail. The ar
rest was made in the house of half
Chinaman named Apio, in Nuuanu
Valley. Gomez had made a contract
with another Chinaman to sell him
thirty tins of the drug. The China
man had been furnished with money
10 buy il and last night was the date
set for completing the transaction. Just
as Gomez was about to pass over the
opium, the police descended and raked
the whole party in"
The declaration did not allege spe-
cial damages, the plaintiff relying
upon his position that the words of
the alleged publication were libelous
per sc.
At the close OF the plaintiffs case, de-
fendants' counsel asked that the plain
tiff be non-suited on the ground that
the article in question did not contain
words libelous (actionable) per Sc, and
in such case the special damages must
be proved and none had been proved.
The Court overruled the motion and
the case proceeded.
Are the words in the publication
HhelouS in themselves?
The law applicable to libel Is crea-
ture of growth, derived from English
and American judicial precedents
through a long period of time. We
nave no statutory enactments defining
the law applicable to civil suits for
damage for defamatory words, either
spoken or written, and we must resort
20 the principles laid down by judges
and jurists under the common law.
comes within that class which affects
private persons and which ''imputes
to q person the commission of a
crime" Newell in Defamation, ETC.,
y. 81. Or as StaTkie, Sec. 80, expresses
It, "When an indictable offense Is inn
puted." Odgers, Sec. %, defines the
class as "When the words charge the
plaintiff with the commission of some
indictable offense." The English rule
seems to be that words, to be action |
able without proof of special damages, /
or il written or printed, to be libelous |
per sc, must be such as impute q !
crime punishable with imprisonment, 1
and if punishable by penalty or fine |
only, they are not actionable without !
proof of special damages. There has |
been great fluctuation of opinion in |
regard to this rule. Lord &. J. Holt |
held that not every charge of misde- |
meanor was actionable-only such as !
entailed "scandalous'' and Infamous
And, since at the pres !
ent day there are offenses which |
though not indictable are summarily
punishable with imprisonment, the |
rule as first stated needs modification.
Judge Cooley states the law as now
settled and accepted by the American
courts Cooley Torts PIP. 196 and ed.
Of ISSO,) viz: at is agreed upon all
hands that it is not always Drine0
fdcie actiOnable to impute to one an
act which is subject to Indictment and
Importance in the law
Of defamation is attached to the inner
snt nature of the indictable act and
also 20 the punishment which the law
assigns it," Judge Cooley adopts the
Test laid down in the leading case
IF Brooker V. Coffin, Johns. 100.
. In case the charge, If true, will !
subject the party charged TO an
Indictment for a crime involving
moral turpitude, or subject him to
an infamous punishment, then the
words will be in themselves actiona-
Die" He cites approvingly Pollard
-. Lyon, 81 L. s., 225, where the Su-
Dreme Court of the L. >. per Clifford,
J., say "Words falsely spoken of a
person which impute to the party the
of some criminal Offense
INVOLVING moral turpitude, for which
he party, if the charge is true, may
De indicted and punished are action
able.
Judge Poland in Redway vs.. Gray,
u VT. 29S, says: 1--WE think that in
addition TO the Offense charged being
punished corporeally il must impute I ;
moral turpitude; the true reason why !
assault and breaches of the peace and ;
violation of the liquor law are not ;
uch OffenseS as make words charging |
hem actiOnable, is because they do
lot necessarily, and in a legal sense,
IMPLY moral turpitude."
The grade of the offense il inmate
ial whether u felony or a misde- T
neanOr. In Massachusetts it is action {
.bl- TO impute drunkenness or I'M
hastily to a woman, because both are {
ubj-ct to "disgraceful' punishment.
The gTavamen of the action seems :
o be the risk of social degradation {
ather than the risk of punishment.
mis- Is recognized in our statute of
libel where the words 20 be :