The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1900-07-25
BRIEF FILED IN
MARSHALL else.
Respondent Has an
Innings in the
Litigation.
STARTLING CLAIM SET Forth.
NEITHER THE LEGISLATURES
NOR THE JURY COULD
DIVIDE
Libel Into Two Degrees, Says The
Pleadings-Not Subject That
Could be Intelligently
Solved.
STARTLING CLAIM SET Forth.


In the matter of the application Of
J. T. De Bolt on behalf of William Il.
Marshall for a writ OF habeas corpus.
Attorney-General E. P. Dole, reprs-
senting the government, and ". o.
Smith. attorney for the Judd estate,
have filed brief on behalf of the re-
spondent.
The brief meets the statement. argl-
ment and logic of the attorney for the
defendant with simple denials and pre-
sents no argument on behalf of the re-
spondent 1t says:
The underlying principles Of coun-
sells brief are that the Legislature en-
deayored to make two offenses under
the head of libel and prescribe the pun
ishment of each; that there is a failure
by the Legislature to describe either
o. these ofenses with certainty, leav-
ing the matter of definition entirely
within the power ,. the jury to create
the offense.
From a review of the various sec
lions OF the Penal Laws of 1887, rela-
tive TO the crime of libel, we claim that
there is no attempt made on the part
Of the Legislature TO make and, with
the power OF the jury, define two
crimes; that there is merely state
ment of one crime with discretion
left to the jury as to the inhiction of
the two penalties. The crime Of libel
IS clearly and definitely defined by Sec
ton 299 The making of libel is set
forth in Section 300 A discretion to
tx general limitations of the penalty is
left to the jury by Section 50i, which
renalty is to be applied by the court
within the limits fixed by the jury as
provided by Sections 305 and SOC.
Then the startling announcement is
made: las a matter of fact, neither
the Legislature nor the jury could, if
they would, divide libel into two dis
tinct offenses. 1t is not subject which
could be intelligently solved into two
distinct classes with the lines properly
drawn.
The impossibility to divide the Of
fenses into classes or degrees is a
s rong argument in favor of the con-
tention of the government. If a crime
is not Invisible into degrees. how can
the accused maintain that he has not
been confronted with the particular
c ime he is alleged to have committed?
Re must know that there can be and
is only one crime under the head of
libel. He may. therefore, safely pro-
coed to prepare his defense to the
image of libel.
1T is not to be supposed that the |
Legislature, being unable to solve the |
problem of dividing the crime of libel |
ITO degrees, SO worded the act as to |
cave the question entirely in the !
lands of the jury to decide what they !
were unable 10 accomplish.
The Legislature in enaeting the stat
tie did not deprive the accused of any |
II his constitutional rights or delegate
o the jury the power of arbitrarily /
'reating an offense. Neither does the
lethod which was adopted work
hardship on the accused. Realizing the |
of dividing the crime in
& degrees the Legislature did not at
empt il, but, at the same time, feel
ng that all the cases which were tried |
lader the head of libel should not be
punished alike. and that there should
,e some guide in fixing the punishment /
@ fit the crime, instead of merely de-
oribing the penalty in general terms TO /
y applied by the court after the jury
lad rendered its verdict. 1t chose,
.ather. TO place a certain discretion in |
re hands Of the jury to say, after hear
ng the facts of the case. whether there
we're any circumstances which would |
the extreme punishment with
N the power Of the court TO infiict un-
Ter the law. or whether the case pre-
stnted was of such malignant char /
.cter as TO merit more severe penalty /
ind designate the bounds within which /
he same should be fixed by the court |
degrees are but limitations OF /
lunishments; that is 10 say, they are
lot degrees Of crime. but degrees OF /
punishment, which the jury are TO fix /
l9on hearing of the facts OF any par
icular case in which they believe that /
lie crime OF libel has been commit
ed"