The Hawaiian gazette., 1901-07-12
Supreme Court
Finds Charge
Preiudiced.
NEWSPAPERS
AS CRITICS
A Dissenting Opinion is Filed by
Justice GaIbraith Trial
is Ordered.

I Judge Little OF Hilo was reversed in
a decision yesterday morning by the
Supreme Court. The case vas that Of
Henry j. Lyman against the Hiio Trib-
une Publishing Company and was ap-
pealed from the Fourth Circuit Court
over which Judge Little presides. The
higher court ordered d new trlal ON
account of prejudicial errors in the low
er courts instruction to the jury,
The action under question was
brought in the month of December,
1900, regarding an article that appeared
in the Tribune some time previous, in
which the police department of Hawaii
was criticised because of their methods
in suppressing the opium and liquor
business in Puma. The jury found for
defendants. The higher tribunal, in
its decision, took occasion To- comment
upon the right of newspapers to dis
cuss the actions of public officials and
points out number of glaring errors
in the decision of the Hilo magistrate.
The following is the opinion Of
Judges Frear and Perry:
This is an action of libel wherein the
plaintiff claims damages for the publiCa-
ton by the defendant In its weekly news
paper, The Hilo Tribune, on December
], 1900 OF the following alleged libellous
words: Sons OF the Deputy Sheriff Of
the Island and of the Captain of the
Police for Puma between them control
the unlicensed dope and liquor business
of the Fahoehoe district. While they oc-
casioualiy appear to be discharging their
duties 10y jumping some Individual who
! cudeavors to do business outside the
combine or in case such one is lacking
they inveigle some perfectly innocent in
diydual into giving them a drink and
seize the proffyred bottle as evidence up
on which to base a false charge and con-
| yictiCu unsupported by other evidence"
Plaintiff is a son of the Deputy Sheriff
referred to. After trial before a jury, "A
verdict was rendered for the defendant
The case comes to this Court on num-
Der Of exceptions raising questions of the
admissbility of evidence, of the correct
ness of certain instructions requested by
the parties, and as to whether the YER
dict is supported by the evidence.
Exception 10. Plaintiff requested the
court to instruct the jury as follows, and
the request was refused: Il further in
struct you that there is no evidence In
this case which will warrant you finding
that the defendant was justified in pub
fishing the article In question, or that
! the facts published by the defendant are
true, The only purpose for which you
| can consider the evidence OF witnesses
who testify that the plaintiff is reported
to be guilty OF the offense charged is
to mitigate the damages and rebut the
presumption of malice" After an exam
nation of the transcript of the notes of
! evidence, we are of the opinion that
! there was no evidence from which the
| jury could have found that the words
published We're true or that the publiCa-
| tion falls within one of the classes of
privileged communications The evidence
adduced concerning the plaintiffs repu-
tation and of reports or rumors that he
was engaged in Illicit dealings in liquor
and opium. would not support finding
OF the truth of the words and was in
competent and inadmissble as proof on
that question, whether admissible or not
for other purposes
The Court below IN It's charge TO the
jury evidently proceeded ON the theory
/ that the jury might properly lind that
the publication I'M question was pryileg-
ed and that the action could not be
maintained without proof 60 actual NAL
Ice, and much evidence was admitted as
tending o. throw light ON the question OF
malice. Iu, jury was. under the i'm
strugl.0u- OF the court ut liberty t0 find
tHat thp publication was privileged and
auuDrIHllE In tuo absence ui actual
malice. DO render verdict for the de-
ruudUuI while much freedom now
permitted fa newspapers .U tHu criticism
of no" ."t- ul public officers IH argh-
aHa f H under rHIs uaH. Hpul entity
lNHf defendant claims pry1.g. n $50.
case. af Uar-tH. Publishers may not with
mUHmiF .HHr-u r..H 5000 .I.Ir With iHH
commit .u 90 uu .t.nr0 They Uu.se.s
..