Territory Hawai`i v. Crowley

Decision Date04 February 1939
Docket NumberNo. 2371.,2371.
Citation34 Haw. 774
PartiesTERRITORY OF HAWAII v. LEO F. CROWLEY.
CourtHawaii Supreme Court
OPINION TEXT STARTS HERE

ERRORS TO CIRCUIT COURT FIRST CIRCUIT. HON. L. LE BARON, JUDGE.

Syllabus by the Court

To charge directly or by clear inference and to print of a former high ranking army officer who, on approaching the age limit, has retired to private life and is employed in reputable private business that his conduct in business “reveals perfidy,” that “trading on his military title” he “lied and deceived workers who trusted to the honor of the U. S. Army”; “swings the * * * sword, hurls * * * mercenaries * * * to convict” innocent workers; that he is a party to “persecution” with “unprincipled and revengeful men”; that his conduct justifies the belief in the homeland of the workers “that American generals are liars and deceivers, schemers to oppress and imprison Filipinos who are innocent”; that he, “for money, shed his country's uniform to don a lackey's livery”; that “as a lackey * * * he has trafficked with the honor, credit and reputation of the United States Army to stir up international strife that his employers might profit”; that he is furthering the schemes of “kings of fascism intent on their works of greed and power”; that his conduct in handling his employers' private business is such that it shows that “public power has been seized and used ruthlessly for private terrorism and revenge”; that “America's * * * prestige * * * has been put on the auction block for profit by HSPA's lackey general” is libelous per se.

Where the intentional publication of such a libel is proved beyond a reasonable doubt, or is admitted, malice in law is shown and its publication, in violation of chapter 196, R. L. 1935, relating to criminal libel, is established.

Where, in a prosecution for criminal libel, a defendant seeks to take advantage of the right granted by section 6055, R. L. 1935, to “give in evidence in his defense upon the trial the truth of the matter contained in the publication charged to be libelous,” the burden is first upon the defendant to show such truth to the trier of the fact by the minimum rational proof of a fact, to wit, by a fair preponderance of the evidence. Unless the truth shall prima facie so appear, there is no burden on the prosecution to establish the falsity of the libelous statements, or to rebut the allegations of truth.

Where the defense wholly fails to advance any evidence to establish as a matter of law to any reasonable man the truth of the libelous charges which were published, the court may so instruct the jury.

Where defendants were convicted by a jury of making and publishing a libelous article, the verdict will not be set aside for theoretical differences as to instructions, where there is a total failure of proof of truth as to substantial parts of the libel and a want of proof of an occasion showing “good motives and justifiable ends” for so attacking a private citizen and no substantial rights of the plaintiff in error are shown to be injuriously affected.

J. V. Esposito (also on the briefs) for the defendants.

W. B. Lymer, Special Prosencutor ( C. E. Cassidy, Public Prosecutor, with him on the brief), for the Territory.

PETERS, J., CIRCUIT JUDGE CRISTY IN PLACE OF COKE, C. J., DISQUALIFIED, AND CIRCUIT JUDGE CASE IN PLACE OF KEMP, J., DISQUALIFIED.

OPINION OF THE COURT BY CIRCUIT JUDGE CRISTY. (Peters, J., dissenting.)

These cases are on writ of error from convictions of plaintiffs in error for publishing in a weekly paper a criminal libel. Separate informations were filed against the Hawaii Sentinel Publishing Company, Limited, an Hawaiian corporation, as owner and publisher of “The Hawaii Sentinel” and against Leo F. Crowley as editor and author of the article complained of. The two cases were, by stipulation of the parties, tried together in the circuit court. Both defendants were convicted and separately prosecuted error. The cases were consolidated in this court.

Section 6050, chapter 196, R. L. 1935, defines libel as “a publication in writing, print, or * * * other than by words merely spoken, which directly tends to injure the fame, reputation or good name of another person, and bring him into disgrace, abhorrence, odium, hatred, contempt or ridicule, or to cause him to be excluded from society.” (Emphasis added.) This statute has existed in Hawaii without amendment since the Penal Code of 1869.

The printed article in question was in the form of a front page “editorial.” Its essential features are emphasized in the marginal quotation (omitting names, there being no dispute as to identity of “blank”).1

It needs no lengthy citation of authority to demonstrate that the above editorial article, in its entirety and as illustrated by the indicated assertions (claimed to be comment on the past event of a strike settlement on one of the private sugar plantations on the Island of Maui), invents an opportunity to make a vicious personal attack on the character, motives and integrity of one individual who at the time was engaged as a private citizen in a private commercial enterprise. This article comes directly within the definition of criminal libel as set out in section 6050, above quoted.2

Under the cited authorities, where the article, as published, is libelous per se, the complaint containing it is good against demurrer.

Section 6052 provides: “The making of a libel is the writing, printing, devising, or in any way forming the same; or aiding or assisting therein, with the intent in any case that it shall be published.” Penal Code, 1869. And section 6053 provides: “The publishing of a libel is the maliciously putting of it into circulation, or the promulgating, exhibiting or distributing of it for the purpose of making it known to others; and thereby in fact making it known to others; or aiding or assisting therein, or the causing or promoting thereof.”

At the trial it was proved by extrinsic evidence and defendantappellant Crowley admitted that he was editor and acting manager of the defendant corporation and did in fact knowingly participate in preparing the article for printing, publishing and circulation as acting editorial manager of the other defendant corporation and that the article was intentionally printed, published and widely circulated under his direction in the weekly paper owned and operated by defendants.

Section 6054 further provides: “Malice is shown, in respect of libel, by making a publication or communicating it to others, wilfully and purposely to the prejudice andinjury of another. Hatred or ill will towards the party injured is not essential to libel.” (Emphasis added.) Hence, the “malice” required in connection with “malicious publication” is legal malice, which means merely the “intent to publish.” (See note in 19 A. L. R. 1485.)

Under the admissions of defendantappellants, the making and publishing of the above article, which was libelous per se, was therefore not in issue, and legal malice was inherent in the defendants' admissions of willful and purposive publication and circulation. Hence, all instructions on presumptions of innocence and reasonable doubt relative to the defendants as perpetrators of the libel were surplusage.

The only possible issue left in the case under the record of the trial involves the application of section 6055. This provides in a criminal prosecution something analogous to the issue of a plea of justification in civil libel. It reads: “Truth as defense. In every prosecution for writing or publishing a libel, the defendant may give in evidence in his defense upon the trial the truth of the matter contained in the publication charged to be libelous; provided, however, that such evidence shall not be deemed a justification, unless it shall be further made to appear on the trial that the matter was published with good motives and for justifiable ends.” (Emphasis added.) Obviously, the attempt to take advantage of such a statute, in effect, operates as a confession and avoidance.

It might be well to inspect this section a little more closely. It is simply put. It needs no distortion to support preconceived notions. It starts out quite simply and directly: “In every prosecution for * * * libel, the defendant may give in evidence * * * upon the trial the truth.” This is the grant of a clear right to the defendant to offer legal evidence, the purpose of which is to support an attempt to show the truth of the statements he has made, as the preliminary foundation for a grant of immunity from the natural consequence of a use of defamation. Implicit in this first approach of a trial right, a procedural right, the trial court is obligated to permit the introduction of any otherwise legal evidence offered clearly for such a purpose. Given such evidence to prove truth, prima facie, then it may also, in the very truth and the occasion for it, contain elements bearing on good motives and justifiable ends. But if no evidence to support the truth of substantial parts of the libelous charges is in the case when defendants cease their efforts to “give in evidence * * * the truth,” what then? And if under any rational view of the concept of the “truth of a fact” there is not even a scintilla of evidence which would justify a reasonable man to say “the truth of the defamatory assertions prima facie appears from these facts,” what then?

It is well to note that the statute only speaks of “good motives and justifiable ends” at the end thereof, where the question is finally reached as to what use is to be made of any such evidence, if the truth might reasonably appear, as to whether and when even the truth will justify acquittal from responsibility. Even if the defendant should take advantage of the privilege “to give in evidence * * * the truth,” yet “such evidence shall...

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