Territory Hawai`i v. Ota

• Decision Date: 10 June 1942
• Docket Number: No. 2484.,2484.
• Citation: 36 Haw. 80
• Parties: TERRITORY OF HAWAII v. YOSHITAKA OTA, ALSO KNOWN AS JACK OTA, ALSO KNOWN AS FAT OTA.
• Court: Hawaii Supreme Court

36 Haw. 80

TERRITORY OF HAWAII

v.YOSHITAKA OTA, ALSO KNOWN AS JACK OTA, ALSO KNOWN AS FAT OTA.

No. 2484.

Supreme Court of the Territory of Hawai‘i.

Submitted April 14, 1942.

Decided June 10, 1942.

EXCEPTIONS FROM CIRCUIT COURT FOURTH CIRCUIT. HON. J. F. MCLAUGHLIN, JUDGE.

Syllabus by the Court

A publication other than by words spoken which imputes to a person the commission of a criminal offense involving moral turpitude or will subject such party to an infamous punishment is libelous per se.

Imprisonment for a term not exceeding five years constitutes infamous punishment. To charge one with the commission of a criminal offense punishable by such a term of imprisonment is therefore libelous per se.

The adoption of a statute from another jurisdiction after said statute has been construed carries with it the construction placed upon it by the courts of the jurisdiction from which it is borrowed unless the imported construction is out of harmony with the spirit and policy of general legislation of the home State.

The admitted or proved conduct of a public officer or of a candidate for public office is a legitimate subject of critical comment but the privilege of critical comment does not include the right to make and publish false allegations of fact.

Under section 6055, R. L. H. 1935, the burden is on the defendant to prove the truth of the matters of fact contained in the publication upon which the prosecution is based. An instruction which requires such proof to be made by a preponderance of the evidence ––that being the lowest measure of proof known to the law to establish a fact––is not error.

W. C. Achi for the defendant.

T. Okino, Deputy County Attorney, County of Hawaii, for the Territory.

KEMP, C. J., PETERS AND LE BARON, JJ.

OPINION OF THE COURT BY KEMP, C. J. (Peters, J., dissenting.)

The defendant Ota was tried in the circuit court of the fourth circuit on an information in two counts, in which it was charged by the first count that on or about the 26th day of September, 1940, he did “unlawfully and maliciously make a libel applying to and concerning one Martin Pence * * * by writing, printing and devising * * * a certain libelous writing with the intent that the said libelous writing should be published, which said libelous writing directly tended to injure the fame, reputation and good name of him, the said Martin Pence, and bring him, the said Martin Pence, into disgrace, abhorrence, odium, hatred, contempt and ridicule, the tenor of said libelous writing being as follows: ‘ATTENTION: Voters of American citizens of Japanese Ancestry.

‘Today, the American citizens of Japanese Ancestry is suspected of their loyalty to the government of the United States of America, is questioned as evidenced by the passage in the United States House of Representatives of a Bill relating to an amendment to the Naturalization Law. The original intention of said Bill was directed against American citizens of Japanese Ancestry born and residing in the Territory of Hawaii or American possessions. It was amended by our able Delegate, Honorable Samuel Wilder King, who made said act applicable also to all citizens of the continental United States. The Bill provides any citizens of foreign extractions visiting the Country of his parents for more than 6 months have forfeited his American citizenship.

‘This suspicion of citizens of Japanese Ancestry was brought about ever since the desertion by an unworthy Peru–born (not American born) dual citizen MARIO SATO from the training squadron “H.I.M.S. YAGUMO,” which visited Hilo last year. When Mario Sato deserted the Japanese Navy Armada, according to his own admission to local newsmen, he went to the home of County Attorney Martin Pence. The Honorable Bunjiro Kudo, Vice–Consul–General of Japan immediately appealed to Sheriff Henry K. Martin, who is also Deputy U. S. Marshal for the Island of Hawaii. The Office of the Sheriff immediately directed a search of Mario Sato, a military deserter. After 20 long valuable hours had elapsed, Sheriff Martin was informed that Mario Sato was at the home of Martin Pence. The U. S. Deputy Marshal Henry K. Martin made an inquiry of Martin Pence who admitted that Mario Sato was with him.

‘WE ASK, WHY MARTIN PENCE, A COUNTY PROSECUTOR, WHO HAD NO JURISDICTION IN THIS MATTER HARBORED OR CONCEALED A FOREIGN MILITARY DESERTER (AN ALIEN) INELIGIBLE TO ENTER THE UNITED STATES, WITHOUT FIRST TURNING THE MAN OVER TO THE UNITED STATES MARSHAL, OR TO THE LOCAL U. S. IMMIGRATION INSPECTOR!

‘Ever since the occurance of this case, expatriated American citizens, such as Seichi Miyasato and Shigero Haraguchi, who had been employed since April 6, 1937 and March 13, 1937, respectively, were discharged from their employment at the Naval Reservation at Kaneohe, at the request of Naval authorities.

‘This situation of suspicion was brought about by Martin Pence who assisted Mario Sato, and they are responsible for the unfounded suspicion of American citizens of Japanese Ancestry by the United States Government. Martin Pence not only placed citizens of Japanese Ancestry in an embarrassing situation with United States government, but likewise, insulted the Japanese government when he concealed a Peru–born (not American born) alien MARIO SATO, who is a military “deserter.” The finger of guilt points more to Martin Pence than the ignorant Mario Sato.’ ”

We have not quoted the alleged libelous writing in full but the remainder of the writing merely urged voters of Japanese ancestry to vote against Martin Pence for the office of county attorney because of the alleged facts. After quoting the writing in full, the information concludes as follows:

“That the paragraph in said libelous writing contained, reading as follows:

‘WE ASK, WHY MARTIN PENCE, A COUNTY PROSECUTOR, WHO HAD NO JURISDICTION IN THIS MATTER HARBORED OR CONCEALED A FOREIGN MILITARY DESERTER (AN ALIEN) INELIGIBLE TO ENTER THE UNITED STATES, WITHOUT FIRST TURNING THE MAN OVER TO THE UNITED STATES MARSHAL, OR TO THE LOCAL U. S. IMMIGRATION INSPECTOR!’

clearly and directly charged the said Martin Pence with the criminal offense of Harboring and Concealing an Alien in Violation of Chapter 29, Section 8 of Volume 39 United States Statutes 880 (Title 8, Section 144, U.S.C.A.); contrary to Chapter 196, Revised Laws of Hawaii 1935.”

The second count charged the defendant with the malicious publication of the same libelous writing.

The defendant was found guilty on both counts by the verdict of a jury. He is here on exceptions.

Defendant, in his opening brief, says that he relies upon exceptions numbered 3, 6, 7, 8, 9, 10 and 11, contained in his bill of exceptions. Oral argument was waived.

The following is a brief statement of the exceptions enumerated:

3. Error in denying defendant's motion for a directed verdict when the prosecution rested. 6. Error in refusing to strike from the information the paragraph alleging that the article charged Martin Pence with the criminal offense of harboring and concealing an alien, etc. 7. The giving of prosecution's instructions 6, 7, 8, 11 and court's own instructions in lieu of prosecution's requested instructions numbers 4 and 5, and refusing defendant's requested instructions 1, 6 and 7. 8. Exception to the verdict as contrary to law, the evidence and the weight of the evidence. 9. Error in denying defendant's motion to set aside the verdict, to arrest judgment and discharge the defendant. 10. Exception to the sentence. 11. Error in denying defendant's motion for a new trial.

His argument is presented under two heads: “I. The Court erred in denying the motion to set aside verdict, to arrest judgment and for the discharge of the defendant,” and “II. The Court erred in denying defendant's motion for new trial.” The grounds in the motion for a new trial include the grounds set up in the motion for arrest of judgment.

Only such grounds as have been urged will be considered. The defendant's specifications of error are as follows: (A) The verdict, judgment and sentence were rendered and imposed pursuant to erroneous instructions and rulings of the court. (B) The verdict is contrary to law, the evidence and the weight of the evidence. (C) The verdict is clearly, palpably, decidedly, and manifestly the result of bias and prejudice.

If ground (B) is not sustained, ground (C) is clearly unfounded. A verdict supported by sufficient evidence cannot be said to be the result of bias and prejudice. Ground (B) cannot be sustained if there is any substantial evidence more than a mere scintilla to sustain the verdict. ( Ter. v. Lam Bo, 23 Haw. 718.) The making and publishing of the writing in question having been admitted by the defendant and it appearing that Martin Pence was, at the time of the publication, county attorney of the county of Hawaii and a candidate for re–election, his admitted or proved conduct was a legitimate subject of critical comment. The privilege of critical comment does not include, however, the right to make and publish false charges for that would exact of the public servant too high a price for the privilege of service. (Post Pub. Co. v. Hallam, 59 Fed. 530, 540.) Hence, the only issue of fact which required submission to the jury was the issue raised by the attempt of the defendant to prove the truth of the matters charged in the publication. The evidence produced by the defendant on the issue of the truth of the charge that Martin Pence harbored or concealed an alien ineligible to enter the United States was, to say the least, very weak. On the other hand, the uncontroverted evidence contra is that Mr. Pence first saw Mario Sato, described in the publication as a military deserter and an alien ineligible to enter the United States, at 7:30 o'clock on Sunday evening and that early the next morning Mr. Pence called upon and had an interview with the local immigration inspector, who, as a result of said interview, called at the office of Mr. Pence in...