The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-07-11
JUDGE L|TTL
IS REVERSED
Supreme Court
Finds Charge
Prejudiced.
NEWSPAPERS
AS CRITICS
A Dissenting Opinion is Filed by
Justice Galbraith-New Trial
is Ordered.

Judge Little OF E1llo was reversed III
a decision yesterday morning by tbs
Supreme Court. The case was that OF
une Publishing Company, and was APP
pealed from the Fourth Circuit Court
over which Judge Little presides. The
higher court ordered a new trial on
account of prejudicial errors in the low
er courts instruction to the jury
The action under question was
brought in the month of December
1900, regarding "a article that appeared
in the Tribune some time previous, in
which the police department of Hawaii
was criticised because of their methods
in suppressing the opium and liquor
business in Puma. The jury found for
defendants. The higher tribunal, in
its decision, took occasion to comment
upon the right of newspapers to dis
cuss the actions of public officials and
points out number of glaring errors
in the decision of the Hilo magistrate.
The following is the opinion of
Judges Frear and Perry:
This is an action of libel wherein the
ton by the defendant in its weekly news
paper, The Hilo Tribune, on December
l. 1900, of the following alleged libellous
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 oc-
casionally appear to be discharging their
duties by jumping some individual who
endeayors to do business outside the
combine, or in case such a one is lacking
they inveigle some perfectly innocent in
dividual into giving them drink and
seize the proffered bottle as evidence up
on which to base false charge and con-
viction unsupported by other evidence"
Plaintiff is son of the Deputy Sheriff
referred to- After trial before jury, a
verdict was rendered for the defendant
The case comes to this Court on a num-
Der of exceptions raising questions of the
admissibility of evidence, of the correct
ness of certain instructions requested by
the parties, and as to whether the YER
dict is supported by the evidence.
Exception 10. Plaintiff requested the
court to instruct the jury as follows, and
the request was refused: Il further in
struct you that there is no evidence in
this case which will warrant you finding
fishing the article in question, or that
the facts published by the defendant are
true. The only purpose for which you
can consider the evidence of witnesses
who testify that the plaintiff is reported
to be guilty of the offense, charged Is
to mitigate the damages and rebut the
presumption of malice After an exam
ination of the transcript of the notes Of
evidence, we are of the opinion that
there was no evidence. from which the
jury could have found that the words
published were true or that the publica-
ton falls within one of the classes of
privileged communications. The evidence
adduced concerning the plaintiffs repu-
tation and of reports or rumors that he
was engaged in Illicit dealings in liquor
and opium, would not support finding
of the truth of the words and was in
competent and inadmissible as proof on
that question. whether admissible or not
for other purposes.
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 privieg-
ed and that the action could not be
maintained without proof of actual NAL
ice; and much evidence was admitted as
tending to throw light on the question of
structions Of the court, at liberty to ind
that the publication was privileged, and
accordingly in the absence of actual
malice, to render verdict for the de-
PENDANT. While. much freedom is now
permitted to newspapers in the criticism
of the acts of public officers as such
and it is under this class, apparently,
that defendant claims privilege in lie
case al 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 liabil-
ity not belonging to any other citizen
See 10 Am &c Eng Encycl Law, A9
Hamilton V. Emo, 81 n. Y, 116; Upton v
Hume, q L. r. A, 493; Root V. King,
Cowen. 613 The case before us is not
one of a privileged communication. The
giving of the instructions on this sub
| ject, was, it is true, not excepted to, but
/ the exception now under consideration
necessarily raises the same questions
The instructions given were inconsistent
with that requested by the plaintiff an6
| proceeded on an erroneous view Of the
! law; plaintiffs request, though perhaps
| in it's second portion somewhat more
favorable TO the defendant than it should
| have been, was otherwise in accordance
with the law and should have been Civ
en-. See Times Publishing Co. V. Carlisle
"a Fed. 762. It's refusal was clearly
| prejudicial to the plaintiff.
| Exception Is. The plaintiff requested
the court to instruct the jury as follows
mo. /. 1 instruct you, gentlemen of the
| jury, that to print and publish, concern
ing any person, that he has sold opium
or spirituous liquor in the Hawaiian Isl
ands is libellous per Sc, and if you FIND
| from the evidence that the defendant
printed and published, concerning the
plaintiff, that he had thus sold spiritu-
Gus liquor or opium, you must give YER
dict for the plaintiff, unless you also find
! that the charge is true This instruc-
ton was first given and then subsequent
| ly withdrawn. The court, in withdraw
| ing it, said well, that instruction
ought not to have been given. There is
nothing in the transaction that he SOLD
| it" The record shows that the tria
| judge, in passing on the bill of excep-
| lions, explained that these remarks were
not addressed to the jury and should
| not be considered as a part of the charge