The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-07-19
OPINION OF THE COURT BY PERRY,
tGalbraith, J., dissenting

tGalbralth, j, dissenting)
This action of libel wherein the plaintiff claims damages
for the publication by the defendant weekly newspaper
The Hilo Tribune December 1900 of the following
alleged ibeous 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 Pahoehoe
district While they occasionally appear be dschargng their
duties by jumping individual endeavors do bust
ness outside the combine, such lacking they
invege perfectly innocent individual into giving them
drink and the proered bottle evidence upon which to
base false charge and conviction unsupported by other ev
dence" Plaintiff is of the Deputy Sheriff referred to-
After trial before jury verdict rendered for the defend
The this Court a number of exceptions
raising questions of the admssby of evidence of the
ectn of certain instructions requested by the parties and
to whether the verdict supported by the evidence.
Exception 49, Plaintiff requested the instruct the
jury follows, and the request refused II further
ruet you that there evidence in this which will
you finding that the defendant justified in publishing
article question: that the facts published by the de
PENDANT The only purpose for which you consider
the evidence of who testify 1.-THE plaintiff reported
to be guilty of the oense charged mitigate the damages
and rebu the presumption of malice After examination
of transcript the of evidence of the opinion
that evidence from which the jury could have
found that the published that the publication
falls within of the classes of privileged communications
The evidence adduced concerning the plaintiffs reputation and
of reports that he engaged in illicit dealings In
liquor and op would not support finding OF the truth OF
the words and incompetent and nadmissbe as proof on
that question: whether admissible for other
The Court It's charge to the jury evidently proceed
ed on the theory that the jury might properly lind that the
publication in question privileged and that the action could
not be- maintained without proof of actual maee and much
evidence was tending throw light the question
of The jury under the instructions OF the court
at liberty find that the publication privileged and ac
cordngv in the of actual malice to render verdict Tor
the defendant While much freedom permitted to news
papers in the criticism of the acts of public officers sucand
it under this class apparently that defendant claims PRIV
eo IN the case at barthe publishers rot with IMMUNITY
CHARGE ch an officer with the commission OF an oense Ihey
possess in this respect immunity from liability not belonging
To anv other citizen See Is Am. d Eng Encyel Law, 4l9
Hamilton D. Emo 81 N Y, 49, Upton u Hume, Il L" H. A.
1913: Root o. King Cowen, 613 The case before us IS not
ono f privileged communication The giving OF the nstruc
tons on this subject was it true not excepted TO- ou tne
now under consideration necessarily raises the same
o,os;ons The Instructions given inconsistent with that
requested by the plaintiff and proceeded on an erroneous we"
of the law plaintiffs request though perhaps IN It's second p
sobt more favorable the defendant than it should
have been was otherwise in accordance Win the law anu ~
hove been piven See Times Publishing Co. o. cdr'se, "a
I'll REQ IT, was clearly prejudicial to the plaintiff
1ton 10 The plaintiff requested the court to instruct
a. 49,; % follows: No l. instruct you gentlemen OF the
~ that to print and publish concerning any person. ina. ne
has sold opium spirituous liquor IN tue na" i :
belous per Sc and if you find from the evidence ta' Inc
;nted and published concerning the plaintiff, that
- hr sod spirituous liquor opium you must give
zerct for the plaintiff unless you also find that the charge
~; ;str.ction was first given and then subsequently
-, Tho court in Withdrawing it said; sWel' tna1
instruction ought not have been given lhere no'nl -
tbe article that says he sold it. There IS n0'nns -
that he sold it." The record shows that 'ne a 5'
4b hill of exceptions explained that these re-
u p not addressed to the jury and should not be c0nsld
cred as part of the charge The statements however,