Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1901-07-11
JUSTICE GA[BRA|TH SEEKS
DECLARATIONS Of law

Justice Galbraith in his dissenting
opinion on the Hilo libel case said:
am not able to agree with the opin-
ion Of the majority of the Court IN this
case. One reason for this is that
have settled conviction that 1t is
more important to declare the law Of a
case than to announce that the trial
Judge has committed error.
The plaintiff prepared his cause and
tried 1t in the court below. on the
theory that the publication was libel
lous per Sc. He neither alleged nor
claimed special damages. The de-
Tense maintained that the charges
made In the publication were true, and
also that the publication was priyI-
legged.
The evidence concludes that there
, was no evidence before the jury upon
which 1t could have found that the
charges were true and that the publ
cation was not privileged, but refuses
to express an opinion on the vital
question In the case, !. e. whether or
not, the publication was libellous per
Sc, although the court below instruct
ed the jury that 1t was.
II the plaintiffs theory OF the law
of the case Is not correct, his excep-
tons should be overruled. II the pub
LEGATION is not libellous per Sc, dam
ages are not presumed but must be
alleged and proved. There was no
proof of actual damages and judg-
In, 70 a 10
tanned under any other view of the law.
than that maintained by the plaintiff.
II there was failure of proof on the
part of the plaintiff, he was not pre-
JUDGED 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 tire
law Of the case, |. e., whether or not
the instruction of the court that the
publication 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 1t could find that the alleged
libellous words were true and that the
court again erred In admitting and re-
fusing to strike out the testimony of
J. II. Wilson-evidence from which the
jury might have found that the plain
tiff was engaged In the business OF
handling dope" am inclined to
agree with the majority, that the testi-
mony of Wilson was improperly ad-
mitted and should have been stricken
out, but It was before the jury when
the instruction was asked and while
1t was there, the refusal to give tho
below erred in one Of these instances
but clearly did not 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 main
tanned without proof Of actual malice"
And this conclusion is reached In the
face Of the following words found In
the charge OF the court below to tho
jury, to wit: you must bear in mind
that editors and publishers of news
papers are not privileged to publish
libel in the dissemination of news, but
are liable for libellous publication like
other persons without proof of ex-
press malice or actual Ill will against
the person libelled." ! submit that
this instruction is good law and is
fully sustained by the leading case OF
Times Pub. Co, VS.. Carlisle 81, Fed. 762,
and does not warrant the conclusion
above quoted from the majority of this
Court.
1t thus appears to me that the real
question OF law presented by the
record in this case remains unsettled
and undetermined by The opinion.