The Hawaiian gazette., 1901-07-12

DOT ~ NNnflurft0 ~ pat ~ the NhHfEe
Tho statements. however. were made f
$3.50 presence and heaiinE 81 the jury
They were comments upon n question Of
att which il was In tho province of ihr
Iur alone 90 determine. to VII what
yaa che meaning ~ The alleged iiholIUua
HufuH SEQ i8 Am n EnCyci Law, so.
DlR,ff Libel a Islander, %, Newell. Dc-
mwutI0n, SANDER a LIBEL 30. .ho jury
may well nave placed great weight upon
and been Influenced By the construction
given hy The court to the Language. and
if 81 was so influenced. IL must nave been
TO plaintiffs dotrlmont, for the ti.dg' 3
construction was adverse to plaintlh 3
case The alleged lIbellous words we're
at least capable Of the construction CON
tended FOR by the plaintiff, and the quas-
ton should have been submitted - TIE
jury without any Indication OF the
Judges Views In the matter. See Sec. ],
Chap. Sc, Laws OF 1899.
We regard Exhibit lOA, the stcnogsaph-
ers transcript OF the notes of proceed
ings had In the settlement OF Exception
Is. as being properly before us as a part
Of the bin OF exceptions. for the reason
that the trial Judge himself by an en-
dorsement ON the original bill, makes
a2id exhibit a part thereof.
Whether or not, at the date of the pub
b'hAlNh ifl'll'h w. IL Ndn an III
this Territory to have in possession or
to sell opium, and whether or not 1t was
libellous per Sc at that time to charge
one with such possession or sale ere
questions which were not argued before
us. No opinion Is expressed thereon.
The court, although 1t refused PLAINTIFFS
request Number /, nevertheless charged
the jury that, at IL libellous per Sc to
charge in a printed publication a person
with an offense of selling opium, the Of
Tense being punishable by imprisonment
at hard labor, and its commission in.
volving moral turpitude and subjects the
offender to social degradation" To this
instruction no exception was taken.
Exceptions 10 and 16. j. r. wilson,
witness for the defendant, was asked in
dir ect examination: do you know his"
Uhe plaintim's) general reputation in
the community where he lives with refer
ence to his controlling in any part or
manner the opium business?" to which
the answer was: "Well, / don't know.
there is only one way in which l can an
Swcr that question. On several oCCa-
siops these Cinnamon have come 20 Inc
to get opium and said 1t was for Henry
Lyman" An objection to the question
and a notice to strike out The answer
and have the jury instructed to Disregard
1t, were both overrulCd The answer
was clearly inadmissihle as evidence
either of general reputation or nf me
truth of the words published, or on any
other theory. Specific acts may not be
shown to prove reputation, and as evil
derce of the truth OF the charge the
statements made to the witness were
hcarsay.
BY reason of these preJldlcial errors,
plaintiff is entitled to a new tIiul. Tho
f.tl ont. ,, l.
a. PERRY
Smith & Parsons for Plaintiff; Wise X
Nickeus for defendant.
Judge Galbralth holds an opposing
opinion which is filed with the decision.
He states that the real question Of law
presented in the case is that whether the
publication was hbcllous FER Sc, remains
undetermined.
am not, able to agree with the opinion
of the majority of the court in this case
one reason for this is that l have a set
tied conviction that it is more important
to declare the law of case than 20 an
nounce that the trial judge has commit
ted error
The plaintiff prepared his cause and
tried II in the court below on the tneoIy
that the publication was libellous per Sc.
He neither alleged nor proved special
damages. The defense maintained that
the charges made in the publication were
true, and also that the publication was
privileged.
The opinion concludes that there was
no evidence before the jury from which
it could have found that the charges
We're true and that the publication was
not privileged. but refuses to express an
opinion on the vital question in the case
l. T., whether or not the publication was
lihelous per Sc, although the court below
instructed the jury that 1t was
If the plaintiffs theory of the law of
the case is not correct his exceptions
should be overrulod Ii the publication
Is not libcllous per Sc damages are not
presumed but must be alleged and prov
ed. There was no proof of actual dam
ages and a Judgment In his favor could
not he maintained under any other view
of the law than that maintained by the
ilantff. II there was failure of proof
on the part Of the plaintiff he was not
prcJudiccd by any Of the alleged errors
and has 40 just cause TO complain. So
II seems to me that the court should
have determined and announced the law
OF this case, T. e., whether or not the in
structun OF the court that the pullicl-
lion was lhyll.us per See was correct.
Tho opinion determines that the uial
court erred i'm refusing TO Instruct the
jury that there was uD evidence from
which 30 could NnI chat che AL. gel iihol-
.ou- words were true ANA chat tine court
lHa erred iu admitting uuI refusing 20
strike uut the testimony OF j. r. WIson
uN..u.a from which the jury mgnt
uE. found chat tnt p'aInun was ,naug-
I bon fn. uuH.U,. OF 'UIui ing dope"