The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1901-07-10
NEW TRIAL OF HILO LIBEL SUIT
ORDERED.
Supreme Court Finds Errors in Instruc-
tions to the Jury in the Suit Against
the Tribune.

The Supreme court this morning rem
dered a decision in the case of Henry
j. Lyman against the Hilo Tribune
Publishing Company, appealed from
the 'ourth Circuit Court, ordering
new trial on account of errors in the
courts instructions to the jury. Justice
Gaiuraith dissents. The action was
one brOugh, on account of publication
in the Tribune in December, 1900, of an
article regarding the dope and liquor
business in Puma and action of the
police in supressing the same. The jury
found for defendants. Inthe decision
the higher court discusses the rights of
newspapers to criticise public officials,
and finds a number of errors in the
Circuit Court Judges rulings The
decision in part is as follows
THE court below in it's charge to the
| jury evidently proceeded on the theory
| that --Ie jury might properly find that
the puDlica lion in question was priVl-
/ legeI and that the action could not be
! maintained without proof OF actual ma
! lice; ana much evidence was admitted
as tending to throw light on the ques-
/ ton of malice. The jury was, under the
! instructions of the court, at liberty toI
| find that the publication was privileg-
/ ed, and accordingly in the absence of
actual malice, to render a verdict for
! the defendant While much freedom is
/ now permitted to newspapers IN the cri
/ ticism of the acts of public officers as
such,-and it is under is class, appar-
emily that defendant claims privilege in
| the case at bar-the publishers may not,
with impunity charge such an officer
| with the commission of an offense. They
| possess in this respect no immunity
! from liability not belonging to any yothel
| citizen.
! The case before us is not one of a
privileged communication. The giving
of the instructions on this subject, was,
| 1t is true not excepted to, hut the ex-
| ception now under consideration neces-
/ sarily raises the same questions. The
! instructions given were inconsistent
J with that requested by the plaintiff and
| proceeded on an erroneous view of the
\ law; PLAINTIFFS request, though perhaps
4 in it's second portion somewhat more
i favorable to the defendant than it
should have been, was otherwise in ac-
cordance with the law and should have
I been given and it's refusal was clearly
prejudicial TO the plaintiff.
| The plaintiff requested the court to
| instruct the jury as follows No l. L
| instruct you, gentlemen of the Jury.
that to print and publish, concerning
any person. that he has sold opium or
spirituous liquor in the Hawaiian ISL
4 ands is ltbellous per Sc, and if you find
from the evidence that the defendant
| printed and published concerning the
plaintiff, that he had thus sold spirl-
y
Il a verdict for the plaintiff unless you
also find that the charge is true This
instruction was first given and then
subsequently withdrawn. The court. in
Withdrawing it, said: We'll, that in
strucuOn ought not to have been given
Ihere Is nothing in the article that
says he solo it. There is nothing in tn,
| transaction that he sold it, The rec
ORD shows that the trial Judge In pass
ing on the bill of exceptions, explained
| that these remarks were not addressed
to the jury and should not be consider
ed as a part of the charge. The state
ments however, were made in the pre-
sence and hearing of the jury. They
| We're comments upon question of fact
which it was in the province of the Jury
alone to determine, to wit, what was
the meaning of the alleged libelous
| words"
u. r. Wilson, a witness for the de-
tendant, was asked in direct examina-
tlon: DO you know his (the plaintiff's)
general reputation in the community
where he lives with reference to his
controlling in any part or manner the
OPIUM Dusiness?' to which the answer
| was: We'll, L don't know, there is only
one way in which I can answer mat
| question. On several occasions these
Chlnamen have come to me to get opium
ana said 1t was for Henry Lyman An
opJectlon TO the question and a notice
1 10 strike out che answer and have the
Jury instructed to disregard IL were
both overruled. The answer was clear
ly inadmissible as evidence either of
general reputation or of the truth of
the words published, or on any other
theory Specific acts may not be shown
20 prove reputation, and as evidence of
the truth of the charge the statements
made to the witness were hearsay.
ny reason Of these pretudicial errors
plaintiff is entitled to a new trial. The
other exceptions need not be consider
ed