The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-07-11


Odgers, Libel & SANDER, SO; Newell. De-
famation, SANDER & Libel, 29o. he jury
may well nave placed great weight upon
and been Influenced by the construction
given by the court to the language; and
if it was so influenced, it must nave been
to plaintiffs detriment, for the judges
construction was adverse to plaintiffs
case. The alleged libellous words We're
at least capable of the construction con-
tended for by the plaintiff. and the Ques-
ton should have been submitted - the
jury without any indication of the
judges views in the matter See Sec ].
Chap. sc, Laws of 1892
We regard Exhibit 10A, the stenograph-
er's transcript of the notes of proceed
ings had in the settlement of Exception
Is, as being properly before US as d part
of the bill of exceptions, for the reason
that the trial judge himself. by an en-
dorsement on the original bill, makes
said exhibit a part thereof.
Whether or not, at the date of the pub
LEGATION referred to, it was an offeuse in
this Territory to have in possession or
to sell opium, and whether or not il 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 it refused PLAINTIFFS
request Number l. nevertheless charged
the jury that, sit is libellous per Sc to
charge in 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 Is and is. j. r. Wilson,
witness for the defendant, was asked in
direct examinations: DO you know his
(the plaintiff'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, 1 don't know.
there is only one way in which I can an
swer that question. On several occa-
sions these Cinnamon have come 70 lie
to get opium and said it was for Henry
Lyman" An objection to the question
and notice to strike out the answer
and have the jury instructed to disregard
it, were both oyerruled. The answer
was clearly 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 to prove reputation, and as evil
dence of the truth of the charge the
statements made to the witness were
hearsay.
By reason of these prejLdicial errors,
plaintiff is entitled to a new trial The
other exceptions need not be considered.
w. F. FREAR,
A. PERRY.
Smith & Parsons for Plaintiff; wise C
Nickeus for defendant.
Judge Galbraith 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 libellous 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 1 have a set
tied conviction that it is more important
TO declare the law of a case than 10 an
nounce that the trial judge has commit
ted error.
The plaintiff prepared his cause and
tried it in the court below on the Theory |
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 |
were true and that the publication was
not privileged, but refuses to express an
opinion on the vital question in the case,
l. e., whether or not the publica ton was
libellous per Sc, although the court below
instructed the jury that it was.
If the plaintiffs theory of the law of
the case is not correct his exceptions
should be overruled. If the publication
?.
presumed but must be alleged and prov
ed. There was no proof of actual dam
ages and a judgment in his favor could
not be maintained under any other view
of the law than that maintained by the
plaintiff. If there was a failure of proof
on the part of the plaintiff he was not
prejudiced by any of the alleged errors
and has no just cause to complain. So
it seems TO me that the court should
have determined and announced the law
of this case, i. e., whether or not the in
struction of the court that the publica
ton was libellous per Sc was correct.
The opinion determines that the trial
court erred in refusing to instruct the
jury that there was no evidence from
which it could find that the alleged libel
lous words We're true and that the court
again erred in admitting and refusing 20
strike out the testimony of ]. r. Wilson
evidence from which the jury might
have found that the plaintiff was engag
ed in the business of handling dope"
am inclined to agree with the majority
that the testimony of Wilson was i'm
properly admitted and should have been
stricken out, but it was before the jury
when the instruction was asked and
while it was there the refusal to give the
instruction was not error. The court be-
low erred in one of these instances but
clearly did not err in both of them
Again the opinion proceeds: THE court
below in its charge to the jury evidently
proceeded on the theory that the jury
might properly find that the publication
in question was privileged and that the
action could not be maintained without
proof of actual malice and this con-
clusion is announced in the face of the
following words found in the charge of
the court below to the jury, to wit, You
must bear in mind that editors and pub
fishers of newspapers are not privileged
TO publish libel in the dissemination of
news. but are liable for lbellous .publica-
tons like other persons without proof of
express malice or actual i'll will against