Territory v. Crowley , 34 Haw. 774 ( 1939 )

  I respectfully dissent.
  Both defendants should be granted a new trial. The trial court
committed reversible error by instructing the jury as requested
by the prosecution that it was incumbent upon the defendants to
prove justification by a preponderance of the evidence.
  The court, at the request of the prosecution, charged the jury
as follows: "You are instructed that the burden is on the
Territory in these cases to prove beyond a reasonable doubt that
defendants (or either of them) published, or aided in the
publication of, a libelous article as charged; but once such
publication is proved to your satisfaction beyond a reasonable
doubt, the burden is thereafter upon such defendant or defendants
to prove to your satisfaction, by a preponderance of the
evidence, that the charges of lying and deceit contained in the
article were, at the time of its publication, true and, further,
that they were published with good motives and for justifiable
ends." (Prosecution's Requested Instruction No. 3.)
  The following instruction, requested by the defendants, was
refused: "I instruct you, that after considering all the evidence
and the surrounding circumstances attending the publication of
the said article in question, you are convinced beyond all
reasonable doubt, that a libel was published of and concerning
Major General Wells; you will next consider the matters of
defense, and in this regard I charge you, that defendants under
their plea of not guilty, have introduced evidence of the truth
of the statement of facts published in said opinion and criticism
of the publication in question. I instruct you, that Truth is a
complete defense to a charge of Criminal Libel if made in good
faith or for justifiable ends; and in this connection, I instruct
you, that in criminal law, the defendants are not bound to prove
that the publication was made in good faith to entitle them to an
acquittal, nor are the defendants

required by law to introduce any evidence tending in that
direction. If the statement of facts, published in the opinion
and criticism of said publication, were, in fact, true, the
defendants are not guilty of the crime charged. Further I
instruct you, that under the law, the defendants are not required
to prove the truth of the publication, or to prove anything for
that matter, to entitle them to an acquittal. The question for
your consideration in this regard, is this, that, if from all the
evidence introduced in this case, a reasonable doubt arises in
the minds of the jury, as to the truth of the statement of facts
published, then I charge you, that you should resolve that doubt
to the benefit of the defendants and you will find the defendants
not guilty." (Defendants' Instruction No. 22.)
  The only other instructions given by the court upon the burden
of proof were as follows: "I instruct you that the elements
necessary to make out a case of criminal libel are a publication
in writing, print or by picture, statute, sign or representation,
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 cause him to be excluded from society. If you find
beyond a reasonable doubt that the defendants, or either of them,
maliciously put into circulation the newspaper article set out in
these charges (which, taken as a whole, is a libelous article) or
promulgated, exhibited or distributed the same for the purpose of
making it known to others, and have thereby in fact made it known
to others — or have in any way aided or assisted in so doing — I
instruct you that they have published a libel." (Prosecution's
Requested Instruction No. 5.) "I instruct you that unless you
believe that the allegation that * * *1 lied and deceived
workers (as

contained in the newspaper article of September 9th, 1937) is
true, there is no privilege or freedom of the press that will
condone the publication of that statement. But if you believe
from all the evidence that * * * did lie and deceive as alleged
in said publication, then the privilege or freedom of the press
applies." (Prosecution's Requested Instruction No. 19.) "I
instruct you that the issue which you are to try is that
presented by the information, and the defendants' plea of not
guilty in this case. For be it remembered, that the plea of not
guilty puts in issue and requires the prosecution to prove each
and every material allegation in the information beyond all
reasonable doubt." (Defendants' Instruction No. 2.) "The burden
of proof, as those words are understood in criminal law, is never
upon the accused to establish their innocence or to disprove the
facts necessary to establish the crime for which they are
charged. It is on the prosecution from the beginning to the end
of the trial and applies to every element necessary to constitute
the crime." (Defendants' Instruction No. 6.)
  It is axiomatic that in a criminal case it is incumbent upon
the prosecution to prove all of the essential ingredients of the
offense charged beyond a reasonable doubt.
  In order to constitute the statutory offense of publishing a
libel the defamatory matter must be published maliciously. "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." R.L. 1935, § 6053. One of
the essential ingredients of the offense of publishing a libel
therefore is malice. Malice is of the essence of the offense. The
corpus delicti of the offense of publishing a libel is the
malicious publication

of the libelous language. The malice to which I here refer is
malice in its legal sense meaning a wrongful act intentionally
done without any justification or excuse and not malice in its
popular sense meaning hatred or ill will. The statute declares:
"Malice is shown, in respect of libel, by making a publication or
communicating it to others, wilfully and purposely to the
prejudice and injury of another. Hatred or ill will towards the
party injured is not essential to libel." R.L. 1935, § 6054.
  But the legal inference that may be drawn from the making of a
publication willfully and purposely to the prejudice and injury
of another without justification or excuse is not conclusive or
irrebuttable. On the contrary, the presence or absence of malice
is a rebuttable inference. And from whatever source the evidence
may emanate, whether from the prosecution or from the defense or
both, absence of legal malice is a complete defense. Truth which
is inconsistent with malice is also a complete defense if
published with good motives and for justifiable ends. The statute
recognizes this. It provides: "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." R.L. 1935,
§ 6055.
  A "motive" is what induces action; it is the specific mental
cause of bodily action. Motives may be good or bad. "End" is a
general term signifying the thing that ends one's wishes or
endeavors; the consummation of a scheme. The "end" is that which
terminates any course or proceeding. The "end" may or may not
justify the action or the means employed for its attainment. The
meanings and connotations of the phrases "good motives" and
"justifiable

ends" as terms of limitation upon the right of the defendant to
give in evidence in his defense upon the trial the truth of the
matter contained in the publication alleged to be libelous, are
well-known and enable those "within their reach to correctly
apply them." They have an historical legal background originating
in the common law. They and terms of similar import had a
well-settled common-law meaning. They have been adopted by many
of the States both by incorporation in their constitutions as a
part of the definition of free speech and as a statutory
limitation upon truth as a defense. The marginal note2
indicates the extent to which these terms have been employed in
constitutions and statutes of the several States. Newell, Slander
and Libel (4th ed.), in sections 697 and 700, at pages 764 and
768, points out instances where the terms "good motives" or
"justifiable ends" or terms of similar import have been used
legislatively to limit the defense of justification. In the
celebrated case of People v. Croswell, 3 Johns. Cas. 337,
360, General Hamilton, the attorney for the accused, advanced the
contention that the liberty of the press consists of the "right
to publish, with impunity, truth, with good motives, for
justifiable ends, though reflecting on government, magistracy, or
individuals." And this definition was adopted by the supreme
court of the

State of New York in its opinion by Kent, J., as a perfectly
correct, comprehensive and accurate definition of the true
standard of the freedom of the American press. No case has been
called to my attention and personal industry has developed none
where any question has arisen as to the meaning of those terms or
their application. The cases cited in the accompanying marginal
note3 are instances of the acceptance of those terms in all
their historical and legal significance and their application to
the defense of justification under statutes similar to ours where
truth of the matter contained in the publication charged to be
libelous was a complete defense where it also appeared that the
libelous matter was published with good motives and for
justifiable ends. From the English and American authorities to
which I have had access, in which the same or similar terms have
been construed, I conclude that as applicable to truth as a
defense, the term "good motives" means that the publisher was not
motivated by malice but, on the contrary, was motivated by good
motives consistent with the relations the publisher bore to
others and that the term "justifiable ends" means that the end
was justified by
 
the occasion which motivated the publication, to wit, matters
giving rise to privileges, including fair comme upon matters of
public concern. The phrases "good motives" and "justifiable
ends," as adopted by Hawaii and incorporated in the libel law,
must be taken with their respective accepted legal meanings.
(Seven Cases v. U.S., 239 U.S. 510, 517.)
  It must be apparent that "good motives" are the antitheses of
legal malice. "Justifiable ends" rebut malice. And where, as
here, truth as a justification presupposes falsity, that truth is
inconsistent with malice when published with good motives and for
justifiable ends.
  The trial court admitted evidence offered by the defendants of
the truth of that portion of the defamatory article which charged
that the person defamed had "lied and deceived workers."
(Prosecution's Requested Instruction No. 19.) A showing that the
defamatory matter was published with good motives and for
justifiable ends is, under the statute, a condition precedent to
the receipt by the court of evidence of the truth of the matter
contained in the publication charged to be libelous. The receipt
by the court of evidence offered by the defendants of the alleged
truth of the matter referred to and contained in the publication
charged to be libelous was tantamount to a conclusion by the
trial judge that as a matter of law the occasion of the
publication was a matter of public concern and subject to fair
comment and that if the defamatory matters contained in the
article were true, the publication was made with "good motives"
for "justifiable ends" and hence privileged. And rightfully so.
Whether or not a publication is privileged is a question of law
for the court. The subjects of the article in which the
defamatory matter referred to was included were clearly matters
of public concern. The article referred to the present political
relations between the government of the United States and the
government of the Philippine Islands; to negotiations had between
employers

and workmen which subsequently upon the trial developed to have
been negotiations had to settle a strike between the managers of
three sugar plantations on the Island of Maui, represented by the
secretary of the Hawaiian Sugar Planters Association, a voluntary
association composed of practically all of the sugar plantations
in the Territory, including the three plantations involved, and a
committee representing four thousand striking Filipinos formerly
in the employ of the three plantations; and to a criminal
prosecution which was the outgrowth of the strike then pending
before the circuit court of the second circuit, the parties
defendants to which included members of the committee
representing the strikers and the dismissal of which, it was
claimed by the latter, was promised by the secretary of the
Hawaiian Sugar Planters Association, upon the occasion of which
it was charged that the secretary of the Hawaiian Sugar Planters
Association had "lied and deceived the workers." The truth of the
charge that the secretary of the Hawaiian Sugar Planters
Association had lied and deceived the workers became an issue of
fact, not as truth in the abstract but as evidence of the absence
of malice.
  Moreover, the prosecution did not abide the inference of legal
malice that the statute afforded. It introduced extrinsic
evidence of actual malice or malice in fact in the form of
publications appearing in the Hawaii Sentinel relating to the
same subject matter published before and after the time of
publication of the article, which was the basis of the
prosecution. Actual malice or malice in fact is usually referred
to as "express malice" to distinguish it from "implied malice" or
the malice in law which is presumed to exist from the publication
of defamatory matter without justification or excuse. This
evidence of actual malice was pertinent only to the defense of
justification. "Justifiable ends" neutralize the inference of
legal malice. And failing to prove legal malice, it was incumbent
upon

the prosecution that it prove actual malice. The prosecution
introduced this evidence not by way of rebuttal but as a part of
its case in chief in anticipation of the defense of truth. To
meet the situation as thus presented by the prosecution, the
defendants, as a part of their defense, offered evidence of the
absence of actual malice.
  Hence it was that upon the conclusion of the case the issue of
malice was in the following situation: The language included in
the article to which I have heretofore referred was libelous of
itself and gave rise to the inference of legal malice. The
prosecution had also introduced evidence of actual malice. There
was evidence offered by the defense tending to show good motives
and justifiable ends. This evidence tended to prove absence of
legal malice. There was also evidence introduced as a part of the
defense tending to prove the truth of the libelous charge. This
evidence of truth tended to rebut legal malice. But neither good
motives nor justifiable ends nor truth constituted a defense if
the defendants were actuated by actual malice. The defendants
offered evidence tending to show the absence of actual malice.
Upon the Territory rested the burden of proving legal malice.
Failing this, there also rested upon it the additional duty of
showing actual malice. Against this evidence was evidence of good
motives, justifiable ends, truth and absence of actual malice.
Obviously there was a sharp conflict between the prosecution and
the defense upon the issues of legal and actual malice. Proof
beyond a reasonable doubt of the affirmative of the issues of
legal and actual malice and every essential element of the
offense included in those terms devolved upon the prosecution.
Any doubt redounded to the benefit of the accused. It was
immaterial whence that doubt arose. Further it was immaterial as
to the weight of the evidence that might create a reasonable
doubt.
  Many of the cases cited by the prosecution refer to the

burden of proof being on the defendant when truth is interposed
as a defense. This expression, however, means nothing more than
that that burden rested upon the defendant when interposing such
defense of going forward. Where the prosecution in a case for
libel makes out a prima facie case of malicious publication of
a defamatory libel, the burden of going forward, usually
characterized as the burden of proof, rests upon the defendant.
But the burden of proof, strictly speaking, that is, proof of the
essential ingredients of the offense, never shifts in a criminal
case. It abides with the prosecution throughout the case. It
never shifts to the defendant. And where the prosecution makes
out a prima facie case and the defendant assumes the burden of
proof of justification, the burden of proof of malice still
abides with the prosecution and it must prove malice and all the
elements involved therein beyond a reasonable doubt. Where the
inference of malice is offset by evidence of truth, with good
motives and for justifiable ends, the burden remains with the
prosecution to prove actual malice and the falsity of the
defamatory charges. It was not the duty of the defendants to
prove by any degree of evidence, call it preponderance of
evidence or what you will, that the defamatory article was true
and published with good motives or for justifiable ends or to
show that it was not published with actual malice. It was the
duty of the prosecution to prove the opposite. And this, beyond a
reasonable doubt.
  The vice of prosecution's instruction number 3 is obvious. It
was prima facie prejudicial. As an instruction on the civil
side for damages, it was applicable. But to a criminal
prosecution it had no application. It is diametrically opposed to
every theory of proof in criminal cases beyond a reasonable
doubt. And its effect was to deprive the defendant of a fair
trial.
  Defendants' requested instruction number 22, though faulty in
some respects, substantially sets forth the correct

rule. Nor can it be said that any of the instructions given cured
the error committed in giving prosecution's requested instruction
number 3. Taken in connection with the prosecution's requested
instruction number 5, all that was necessary for the prosecution
to prove under its requested instruction number 3 was
publication. Whereupon, under instruction number 5, the burden of
proof of the defense of truth lay with the defendants; and proof
by a preponderance of the evidence. Nor did the defendants'
instructions numbers 2 and 6, given by agreement, cure the error.
To instruct the jury, in the face of instructions numbers 5 and
3, that the burden of proof was not on the accused but rested
upon the prosecution from the beginning to the end of the trial
and applied to every element to constitute the crime, was
inconsistent, conflicting and misleading.
  This is a matter of first impression in this jurisdiction.
Other jurisdictions, however, have solved the problem against the
propriety of an instruction imposing the duty upon the defendant
in the case of criminal libel of proving justification by a
preponderance of the evidence. In the case of State v. Wait,
44 Kan. 310, 24 P. 354, the defendant was charged with criminal
libel. The Kansas bill of rights provided that in all civil or
criminal actions for libel the truth might be given in evidence
to the jury and if it should appear that the alleged matter was
published for justifiable ends the accused party should be
acquitted. The statutes of Kansas also contained the provision
that in all prosecutions or indictments for libel the truth
thereof might be given in evidence to the jury and if it appeared
to them that the matter charged as libelous was true and was
published with good motives and for justifiable ends, the
defendant should be acquitted. That portion of the statute
requiring the defendant, in order to make good his defense, to
prove that the alleged libelous matter was published with "good
motives," had been held to be violative of the

constitutional provision pertaining to the same subject matter so
that the statute, to the extent that it exceeded the provisions
of the Constitution, was not applicable and that proof of truth
for justifiable ends was sufficient to enable a defendant to
acquittal. Error was assigned to the giving of certain
instructions on the defense of justification. In considering the
instructions given, the court held: "Where the defendant in a
criminal prosecution for libel justifies upon the ground that the
alleged libelous matter was and is true, and was published for
justifiable ends, he is required to prove, or in some manner to
show only its substantial truth, and that it was published for
justifiable ends; and he is not required to prove or show the
truth of any of the alleged libelous matter except such as would
in fact be libelous if not true; and he is not required to prove
or show the truth of even that portion of the alleged libelous
matter by a preponderance of the evidence, but only by evidence
sufficient to create a reasonable doubt in the minds of the
jury."
  In State v. Bush, 122 Ind. 42, 23 N.E. 677, the trial court
charged the jury that if they found that the defendants published
the words charged, it was their duty to find them guilty unless
they further found that they had proved that the words spoken
were true and that the publication was made in good faith. The
appellate division held that the defendants "were not required to
prove the truth of the publication to entitle them to an
acquittal, if from all the evidence before the jury, a reasonable
doubt arose in the minds of the jury as to the truth of the
publication, the appellees are entitled to the benefit of that
doubt, and, therefore, to a verdict of not guilty."
  The issue here presented is not unlike that arising in
prosecutions for murder where the defense is insanity. In murder,
malice is presumed from certain facts and persons are held
responsible for the consequences of their acts upon

the principle of presumption. The defendant is also presumed
sane. But this presumption of sanity only goes to the extent of
relieving the prosecution of proving sanity and without any proof
on the subject the presumption is conclusive. When proof of
insanity, however, is introduced, inasmuch as malice could not
exist in the mind of an insane person, evidence establishing a
reasonable doubt as to the sanity of the defendant in effect
establishes a reasonable doubt as to the existence of malice. In
the case of Davis v. United States, 160 U.S. 469, the trial
court instructed the jury: "Such insanity, if proved to your
reasonable satisfaction to have existed at the time of the
commission of the act — that is the test — at the time of its
commission, is in the law an excuse for it. * * * The law
presumes every person who has reached the years of discretion to
be of sane mind, and this presumption continues until the
contrary is shown. So that when, as in this case, insanity is
interposed as a defence, the fact of the existence of such
insanity at the time of the commission of the offence charged,
must be established by the evidence to the reasonable
satisfaction of a jury, and the burden of proof of the insanity
rests with the defendant." (Italics provided.) The trial court
also gave the usual instructions upon reasonable doubt and burden
of proof. Upon review of these instructions, the supreme court
said: "The plea of not guilty is unlike a special plea in a civil
action, which, admitting the case averred, seeks to establish
substantive ground of defence by a preponderance of evidence. It
is not in confession and avoidance, for it is a plea that
controverts the existence of every fact essential to constitute
the crime charged. Upon that plea the accused may stand, shielded
by the presumption of his innocence, until it appears that he is
guilty; and his guilt cannot in the very nature of things be
regarded as proof, if the jury entertain a reasonable doubt from
all the evidence whether he was legally capable of committing
crime. * * * The law

presumes that every one charged with crime is sane, and thus
supplies in the first instance the required proof of capacity to
commit crime. It authorizes the jury to assume at the outset that
the accused is criminally responsible for his acts. But that is
not a conclusive presumption, which the law upon grounds of
public policy forbids to be overthrown or impaired by opposing
proof. It is a disputable or, as it is often designated, a
rebuttable presumption resulting from the connection ordinarily
existing between certain facts. * * * In a certain sense it may
be true that where the defence is insanity, and where the case
made by the prosecution discloses nothing whatever in excuse or
extenuation of the crime charged, the accused is bound to produce
some evidence that will impair or weaken the force of the legal
presumption in favor of sanity. But to hold that such presumption
must absolutely control the jury until it is overthrown or
impaired by evidence sufficient to establish the fact of insanity
beyond all reasonable doubt or to the reasonable satisfaction of
the jury, is in effect to require him to establish his innocence,
by proving that he is not guilty of the crime charged. * * *
Strictly speaking, the burden of proof, as those words are
understood in criminal law, is never upon the accused to
establish his innocence or to disprove the facts necessary to
establish the crime for which he is indicted. It is on the
prosecution from the beginning to the end of the trial and
applies to every element necessary to constitute the crime.
Giving to the prosecution, where the defence is insanity, the
benefit in the way of proof of the presumption in favor of
sanity, the vital question from the time a plea of not guilty is
entered until the return of the verdict, is whether upon all the
evidence, by whatever side adduced, guilt is established beyond
reasonable doubt. * * * How then upon principle * * * can a
verdict of guilty be properly returned, if the jury entertain a
reasonable doubt as to the existence of a fact which is essential
to guilt,

namely, the capacity in law of the accused to commit that crime?"
  In State v. Greenville Pub. Co., 102 S.E. 318, the court
said: "In order to a conviction of libel by reason of a
defamatory publication of this character, it must be shown that
it is both false and malicious, and our decisions on the subject
are to the effect further that the `falsity of the charge is not
of itself sufficient to establish malice, there being a
presumption that such a publication is made in good faith.' True,
the malice referred to is not necessarily that of personal ill
will or malevolence; it may be said to exist when it is shown
that the publication is made from some ulterior motive, and it
may be inferred where a defamatory statement is knowingly false
or made without any fair or reasonable grounds to believe in its
truth, or, at times, from the character and circumstances of the
publication itself, but with the exception, probably, that a
man's general moral character is presumed to be good until the
contrary is shown; this being, as stated, a case of qualified
privilege, the burden is on the state to show, and, in a criminal
prosecution, to show beyond a reasonable doubt, that the
defamatory charge is both false and malicious." In Graham v.
State, 7 Ga. App. 407, 66 S.E. 1038, the syllabus opinion is as
follows: "The prosecutor and the defendant were members of the
same secret fraternal benevolent order, called `The Supreme
Circle.' The defendant made a written accusation against the
prosecutor, charging him with aiding and abetting a felonious
assault made upon the person of a brother member. The accusation
was made within the order, in strict accordance with the rules,
and apparently for the sole purpose of having the charges
investigated by the members of the lodge, under its rules.
Held: (1) The written accusation was one of qualified
privilege. (2) The burden was on the prosecutor to show that the
accusation was both false

in fact and malicious in purpose." In the case of Kelly v.
State, 195 S.W. (Tex. Cr. App.) 853, 854, the court held: "A
paragraph of the court's charge submitting the issue to the jury
is as follows: `If you believe from the evidence that Earnest
Kelly, in Hunt county, Texas, on or about the 1st day of
December, 1916, did orally, falsely, maliciously, and wantonly
impute a want of chastity to Mrs. Will Tingle, you will find the
defendant guilty; and if you do not so believe from the evidence,
you will return a verdict of not guilty.' This is criticised as
susceptible of the construction that it required the appellant to
prove his innocence. On another trial the court will doubtless
frame his charge so as to avoid this criticism, and to clearly
place upon the state the burden of proof throughout the case to
prove the appellant's guilt beyond a reasonable doubt."
  Defendants' instructions 2 and 3, which were given by
agreement, are stock instructions upon burden of proof.
Prosecution's requested instruction number 5 refers primarily to
malice. The court had instructed the jury elsewhere that under
section 6054 malice was presumed. Although the court had
instructed the jury that the article was libelous per se, it
included in the instruction the statutory definition of libel.
Taking the prosecution's instructions as a whole, the only issue
of fact presented to the jury was that of publication. But
prosecution's instruction number 3 singled out justification and
made it the basis of a special instruction upon the weight of the
evidence necessary for the defendants to sustain the defense of
justification. And, taken with prosecution's instruction number
19, it in effect charged the jury that unless they believed that
the person defamed had lied and deceived workers as contained in
the newspaper article of September 9, 1937 (the article made the
basis of the prosecution), by a preponderance of the evidence
there was no privilege or freedom of the press that would condone
the publication of that statement.

The obvious effect of these instructions was to impress upon the
minds of the jury that before they could acquit the defendants,
it was incumbent upon them to prove their innocence by a
preponderance of the evidence.
  While the jury was correctly instructed upon the general rule
of burden of proof, it was not told to disregard the
objectionable instruction charging it that it was incumbent upon
the defendants to prove the defense of justification by a
preponderance of the evidence. Prosecution's instruction number 3
was clearly prejudicial. "An erroneous instruction, clearly
prejudicial, cannot be cured by another instruction which
correctly states the law, but does not call the attention of the
jury to the erroneous instruction." Ter. v. Kaeha, 24 Haw. 467,
471. (See also Territory v. Richardson, 17 Haw. 231,
237.)
  To briefly summarize: Where, as here, the jury is correctly
instructed generally upon the burden of proof obtaining in
criminal cases but is also instructed by way of qualification of
an instruction upon the degree of proof devolving upon the
prosecution to prove publication that "once such publication is
proved to your satisfaction beyond a reasonable doubt, the burden
is thereafter upon such defendant or defendants to prove to your
satisfaction, by a preponderance of the evidence that the charges
[here follows the libelous matter] at the time of its
publication, true and, further, that they were published with
good motives and for justifiable ends" such instruction is
reversible error. (Prosecution's Requested Instruction No. 3.)
  In every criminal prosecution the defendant is presumed to be
innocent of the crime charged until the contrary is shown. To
overcome this presumption of innocence and to establish guilt,
every element necessary to constitute the crime must be proved
beyond a reasonable doubt. Where, in a prosecution for publishing
a libel, the defendant introduces evidence tending to prove the
truth of the defamation

and that it was published with good motives and for justifiable
ends, it is incumbent upon the prosecution to prove beyond all
reasonable doubt the falsity of the defamatory matter and that it
was not published with good motives and for justifiable ends.
Conversely if, from all the evidence before the jury, a
reasonable doubt arises in the minds of the jury as to the truth
of the publication and that it was published with good motives
and for justifiable ends, the defendant is entitled to the
benefit of that doubt and to an acquittal.
  Concluding as I do that the giving of prosecution's requested
instruction number 3 was reversible error, it becomes further
necessary to express my views upon the following contentions of
the plaintiffs in error: 1. that the article complained of was
not libelous; 2. that the alleged libelous matter is fair comment
upon a matter of public interest; and 3. that the provisions of
chapter 196, sections 6050 to 6059, both inclusive, hereinafter
referred to as the "libel law," are unconstitutional and void
upon the several grounds urged. None of the other errors assigned
except those herein expressly referred to are passed upon.
  1. First, as to the claim that the article is not libelous. It
is quoted in full in the margin as published, omitting the name
of the person defamed.4
 
  The offense of publishing a libel is defined as follows: "A
libel is a publication in writing, print, or by a picture,
statute, sign, or a representation, 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." R.L. 1935, § 6050. Section 6052 is
quoted supra. It should be observed that in order to constitute
the offense of publishing a libel the writing, print, etc., need
not in effect injure the general reputation or good name of
another or bring him into disgrace, abhorrence, etc. It is
sufficient if it directly tends to injure the general
reputation or good name of another and to bring him into
disgrace, abhorrence, etc. Nor is the Territory required to
prove, in order to prove the offense condemned by the statute,
that the publication tends to injure the general reputation or
good name of the person and to bring him into disgrace,
abhorrence, etc. Where the defamatory article on its face
discloses that it tends to injure the general reputation, etc.,
of a particular

person and bring him into disgrace, abhorrence, etc., proof of a
libel is complete. The statutory definition incorporates into the
body of the laws of the Territory a declaration of that which was
a misdemeanor at common law. It may be said to be declaratory of
the common law. The reason why the publication of a libel is
condemned and made a criminal offense is its tendency to provoke
a breach of the peace. In the case of Commonwealth v. Clap,
4 Mass. 163, 3 Am. Dec. 212, the court said: "The cause why
libellous publications are offences against the state, is their
direct tendency to a breach of the public peace, by provoking the
parties injured, and their friends and families, to acts of
revenge, which it would not be easy to restrain, were offences of
this kind not severely punished. And every day's experience will
justify the law in attributing to libels that tendency which
renders the publication of them an offence against the state."
(See also Newell, Slander and Libel [4th ed.], § 809, p. 917, §
807, p. 916, § 828, p. 934, § 830, p. 935, and cases cited; 3
Col. L. Rev. 546; 18 The Laws of England [Halsbury], T. Libel, p.
605; Coleman v. MacLennan, 78 Kan. 711, 98 P. 281; State
v. Levand, 37 Wyo. 372, 262 P. 24; State v. Gardner,
112 Conn. 121, 151 A. 349.)

Civil and criminal prosecutions are obviously different in their
purpose and end. In the former an individual invokes a remedy for
the invasion of a personal right; in a criminal prosecution the
public "seeks to restrain and prohibit acts, which would destroy
the peace and harmony of society." Commonwealth v. Snelling,
15 Pick. (Mass.) 337. Nor in a criminal prosecution for the
publication of a libel is it considered whether the publication
be true or false "because a man may maliciously publish the truth
against another, with the intent to defame his character, and if
the publication be true, the tendency of it to inflame the
passions, and to excite revenge, is not diminished, but may
sometimes be strengthened." Commonwealth v. Clap, supra.
(Commonwealth v. Blanding, 3 Pick. [Mass.] 304, 15 Am. Dec.
214, 217; State v. Burnham, 9 N.H. 34, 31 Am. Dec. 217, 220;
Newell, Slander and Libel [4th ed.], § 700, p. 768.) Hence it is
that falsity of the alleged libelous charge need not be alleged
in an indictment or information. (Robinson v. State,
108 Md. 644, 71 A. 433; State v. Fosburgh, 32 S.D. 370, 39 Am.
Eng. Ann. Cas. [1916A] 424; State v. Lomack, 130 Iowa 79,
106 N.W. 386.)
  Where a defamatory article is libelous, truth in the first
instance is immaterial and upon proof of a malicious publication
there is a prima facie case of violation of the statute. It is
only when the defendant interposes the defense of justification
that truth with good motives and for justifiable ends comes in
issue and its proof is subject to the general rules applicable to
libel.
  It is well-settled that "to impute to another in libelous form
conduct which tends to lower the other's reputation for veracity
or honesty, irrespective of whether such conduct constitutes a
criminal offense and irrespective of whether it tends to affect
the trade, business, or profession" is libelous per se.
(Restatement, Law, T. Torts, § 569 [comm. g], p. 169. See also
Commonwealth v. Wright, 1

Cush. [Mass.] 46; Richardson v. State, 66 Md. 205, 7 A. 43;
State v. Mayberry, 33 Kan. 441, 6 P. 553; Commonwealth v.
Clap, supra; Colvard v. Black, 110 Ga. 642, 36 S.E. 80;
Paxton v. Woodward, 31 Mont. 195, 78 P. 215; Johnson v.
Commonwealth, 10 Sad. [Pa.] 514; Farley v. Publishing Co.,
113 Mo. App. 216, 87 S.W. 565; Commonwealth v. Damon,
136 Mass. 441.) Whatever may be characterized civilly as libelous
per se is criminally libelous within the definition of criminal
libel defined by section 6050.
  The imputation of falsehood and deceit which runs through the
entire article is clearly libelous. The language employed is
plain and unambiguous. The import of the term employed is clear
and unequivocal. No innuendos were required to explain their
meaning. The allegations of extrinsic facts were unnecessary for
the purpose of showing the application to the party libeled of
the defamatory matter on which the information was founded,
further than to state generally that the same was published
concerning him. The tendency of the language referred to tended
to subject the person condemned to the ignominy characterizing
the offense (§ 6050) and in the absence of justification was
sufficient without more to sustain a verdict of guilty of the
offense of publishing a libel.
  2. As heretofore stated the article complained of had reference
to matters of public interest and concern. As such it was a
legitimate subject of fair and reasonable comment. (Newell,
Slander and Libel [4th ed.], § 477, p. 516, § 481, p. 520; Gott
v. Pulsifer, 122 Mass. 235, 238; Flanagan v. Nicholson Pub.
Co., 137 La. 587, 68 So. 964, 968, and cases cited;
Commonwealth v. Pratt, 208 Mass. 553, 95 N.E. 105, 106;
Conroy v. Pittsburg Times, 139 Pa. 334, 337; Scripps v.
Foster, 41 Mich. 742, 3 N.W. 216; Peoples v. Detroit Post 
Tribune, 54 Mich. 457, 20 N.W. 528.) Comment may descend to
ridicule, sarcasm and even invective, without sacrifice of the
immunity of the privilege. (Gott v. Pulsifer,

supra; Hubbard v. Allyn, 200 Mass. 166, 170, 86 N.E. 356,
358.) Criticism of the truth may be severe, harsh, bitter or
sarcastic; even caustic if the facts warrant it.5 But the
right of discussing matters of public interest does not extend to
the making of false statements of fact. (Newell, Slander and
Libel [4th ed.], § 483, p. 521; Ferguson v. Houston Press
Co., 1 S.W. [2d] [Tex. Civ. App.] 387; Hubbard v. Allyn,
supra; Dow v. Long, 190 Mass. 138, 141, 76 N.E. 667.)
Freedom of discussion rather than of statement is the criterion.
The right to comment does not include the right to make false
statements. Nothing short of the truth will suffice. As said in
the case of Burt v. Advertising Newspaper Co., 154 Mass. 238,
28 N.E. 1, 4, "We agree with the defendant, that the subject was
of public interest, and that in connection with the
administration of the custom-house the defendant would have a
right to make fair comments on the conduct of private persons
affecting that administration in the way alleged. But there is an
important distinction to be noticed between the so called
privilege of fair criticism upon matters of public interest, and
the privilege existing in the case, for instance, of answers to
inquiries about the character of a servant. In the latter case a
bona fide statement, not in excess of the occasion is
privileged, although it turns out to be false. In the former,
what is privileged, if that is the proper term, is criticism, not
statement, and however it might be if a person merely quoted or
referred to a statement as made by others, and gave it no new
sanction, if he takes upon himself in his own person to allege
facts otherwise libellous, he will not be privileged if those
facts are not true."
 
  The gist of the libelous charges in the instant case is that
one of the terms of the agreement under which the strikers
returned to work was a promise made by the prosecutor as the
agent of the employers that a pending criminal case in which
strikers were defendants would be discontinued but that despite
such promise the prosecution had not been discontinued, on the
contrary, had proceeded to conclusions at the instance of the
attorney employed by the Hawaiian Sugar Planters Association, of
which the employers were members; and thus the prosecutor had
lied and deceived the workers. This is a statement of fact and
not of criticism upon facts. And if the statement were untrue,
even if the occasion of its publication were privileged,
justification would not exist. The justification however need be
no broader than the libelous charges. This is the general rule.
"Proof of the substance of the defamatory charge is a
justification and it is not necessary that every immaterial
portion of the charge be proved true." 37 C.J., T. Libel and
Slander, § 508, p. 87.6 The provisions of section 6055 are
confirmatory of the general rule. Were all references to
falsehood and deceit on the part of the prosecutor withdrawn from
the article, the article would not be libelous. It is the truth
of the "libelous charges" contained in the article and not the
truth of immaterial nonlibelous matters that, under the statute
(§ 6050), constitutes justification. If there is evidence, more
than a mere scintilla, tending to prove the substance of the
"libelous charges" the defense of justification has been
sustained.
  Moreover truth is a question of fact and not of law. So long as
there is evidence, more than a mere scintilla, tending

to show the truth of the "libelous charges" its weight and
credibility is for the jury and not a question of law for the
court. It is for the trier of the facts to decide whether the
truth of the defamatory matter is established by the
evidence.7
  In this case there was evidence, more than a mere scintilla,
tending to prove the truth of the "libelous charges" contained in
the article. Whether or not that evidence was true or false is
not for this court to say.
  3. Little need be said in defense of the constitutionality of
the territorial libel law. Defendants claim that the law is
unconstitutional for the reason that it fails to commit to the
jury the determination of the law as well as the facts. Many of
the State constitutions contain such a provision in their bill of
rights. Many State statutes so provide. The Croswell case was
the motive of the adoption of a constitutional provision to that
effect by the State of New York. But no case has been called to
my attention and I know of none that holds that the failure to so
provide violates the guaranty of freedom of the press of the
first amendment or those of the fifth or fourteenth amendments of
the Constitution. Neither the right of trial by jury nor due
process is violated by the power reserved to the court to
instruct the jury upon the law of the case. The same may be said
of the claim that the libel law is unconstitutional for the
reason that under the provisions of section 6055, where truth is
a defense, there is committed to the court as a question of law

and not to the jury as a question of law and fact, the issue
whether the alleged defamatory matter is published with good
motives and for justifiable ends.
  Nor does the failure of the libel law to impose upon the
prosecution the duty of proving the falsity of the alleged
defamatory matter violate the guaranties referred to. As
heretofore pointed out, falsity of the defamatory matter is not
an element of the statutory offense of publishing a libel and
need not be proved except upon the introduction by the defendant
of evidence of truth in support of the defense of justification.
It was not at common law. And I see nothing in the guaranty of
freedom of the press inhibiting the legislative adoption of the
common-law offense of publishing a libel. Massachusetts did so
and the supreme court of that State held that it was not
violative of the State guaranty of freedom of the press. (See
Commonwealth v. Blanding, supra, cited with approval in
Near v. Minnesota, 283 U.S. 697, 714.) The same may be said
of the provisions of the statute in respect to truth as a
defense. The libel law does not impose upon the defendant the
duty of proving the truth of the alleged defamatory matter. On
the contrary, where truth is interposed as a defense, the burden
is upon the prosecution to prove its falsity. Nor does the law
impose upon the defendant by the provisions of section 6054 the
burden of rebutting malice. The statute imposes no duty upon the
defendant of rebutting anything. The section is merely a
statutory rule of evidence that ordinarily obtains where the
unlawful act imputes an unlawful intent in the absence of
justification or lawful excuse. Where an article is libelous,
malice is a reasonable inference arising from publication. The
statutory rule is but confirmatory of the general rule applicable
to libel in the absence of statute. (Wharton's Crim. Ev. [11th
ed.], § 353, pp. 534, 535; Commonwealth v. Snelling, supra.)
The rule of evidence

in that regard is based upon reason. The libel law contains no
limitation upon the general rule that burden of proving malice is
upon the prosecution. Nor does the libel law as a whole impose
any unreasonable restrictions upon the right of a free press.
  Conceding freedom of the press to be a natural and inherent
right, it is not, however, absolute and is subject to restriction
and limitation. (Schenck v. United States, 249 U.S. 47;
Debs v. United States, 249 U.S. 211; Abrams v. United
States, 250 U.S. 616; Gilbert v. Minnesota, 254 U.S. 325,
332.)
  Libel statutes are passed in the exercise of the recognized
police power of the State for the peace, morals and good order of
society. "But it is recognized that punishment for the abuse of
the liberty accorded to the press is essential to the protection
of the public, and that the common law rules that subject the
libeler to responsibility for the public offense, as well as for
the private injury, are not abolished by the protection extended
in our constitutions." Near v. Minnesota, supra, p. 715.
Liberty of the press is not an absolute right and the State may
punish its abuse. (Near v. Minnesota, supra; Stromberg v.
California, 283 U.S. 359, 368.) Included in the power to impose
reasonable restrictions upon free speech is the power to limit
truth as a defense. The limitations upon truth as a defense
imposed by section 6055 are in effect substantive provisions
qualifying the offenses defined by sections 6050, 6052 and 6053
and limiting the effect of the inference of law created by
section 6054. There is no constitutional right to publish a fact
merely because it is the truth. Hence it cannot be said that
under the provisions of section 6055 the truth is unreasonably
limited and restricted to those occasions only where the
defamatory matter complained of is published with good motives
and for justifiable ends.
 
  Finally as to the objection that the terms "good motives" and
"justifiable ends" contained in section 6055 are vague and
indefinite, as a result of which defendant in a prosecution for
libel cannot be advised of the cause and nature of the accusation
against him. Sufficient has been said to show the fallacy of this
contention. These terms were incorporated in our libel law
similarly as they have been adopted elsewhere with a full
appreciation of their meaning and connotation. As said by Mr.
Chief Justice Hughes in the case of Connally v. General Const.
Co., 269 U.S. 385, 391: "[They] are well enough known to enable
those within their reach to correctly apply them." (See also
Hygrade Provision Co. v. Sherman, 266 U.S. 497, 502;
Omaechevarria v. Idaho, 246 U.S. 343, 348.)
  In conclusion let me say that the scope of the statutory
defense of justification permitted by section 6055 is as broad as
the concepts of the term "freedom of the press" itself. Mr.
Justice Kent defined "liberty of the press" as follows: "The
liberty of the press consists in the right to publish, with
impunity, truth, with good motives, and justifiable ends, whether
it respects government, magistracy or individuals." People v.
Croswell, supra. Mr. Justice Story defined "liberty of the
press" thus: "It is neither more nor less, than an expansion of
the great doctrine, recently brought into operation in the law of
libel, that every man shall be at liberty to publish what is
true, with good motives and for justifiable ends. And with this
reasonable limitation it is not only right in itself, but it is
an inestimable privilege in a free government. Without such a
limitation, it might become the scourge of the republic, first
denouncing the principles of liberty, and then, by rendering the
most virtuous patriots odious through the terrors of the press,
introducing despotism in its worst form." Story's Commentaries,
Constitution, § 993, p. 704. "Nay; it has farther been held, that
the truth of the facts is not alone

sufficient to justify the publication, unless it is done from
good motives, and for justifiable purposes, or, in other words,
upon an occasion, (as upon the canvass of candidates for public
office,) when public duty, or private right requires it." Story's
Commentaries, Constitution, § 996, p. 707. Story is cited with
approval in the dissenting opinion of Mr. Justice Butler in
Near v. Minnesota, supra, p. 733.
  Construed in its broadest sense "freedom of the press" consists
of no more than "the right, without any previous license or
censorship, to publish the truth with good motives and for
justifiable ends." 11 Am. Jur., T. Const. Law, § 320, p. 1111,
citing People v. Croswell, 3 Johns. Cas. 337-393; Cincinnati
Gazette Co. v. Timberlake, 10 Ohio St. 549, 555; Ex Parte
Mekel, 87 Tex. Cr. Rep. 120, 220 S.W. 81, 82.
  Consistently with the view herein expressed the judgments and
sentence entered in both cases should be vacated and set aside
and the causes remanded for a new trial.
1 Name of prosecutor deleted.
2 (Rev. Code Ariz. [1928], § 4618; Const. Calif., art. 1, §
9, Deering's Penal Code of Calif., § 251; Code D.C. [1929], T. 6,
§ 40; Idaho Compiled Stats. [1919], T. 59, ch. 302, § 8256;
Const. Ill. [1870], art. II, § 4, Ill. Rev. Stats., c. 38, § 400;
Const. Iowa [1931], art. 1, § 7; Gen. Stats. Kan. [1915], § 3769;
Const. La. [1920], § 989, p. 491; 2 Mass. Stats. [1932], ch. 278,
§ 8, p. 3255; Const. Mich. [1908], art. II, § 18; 2 Mason's Minn.
Stats. [1927], ch. 92, § 9904; Hemingway's Ann. Miss. Code
[1917], § 1008, p. 720; 4 Rev. Codes Mont. [1921], ch. 22, §
10992, p. 88; Const. Neb. [1920], art. 1, § 5; Const. Nev., art.
1, § 9, 2 Rev. Laws Nev. [1912], § 6428; Const. N.J. [1884], art.
1, § 5; Const. N.M. [1912], N.M. Stats. [1929], art. II, § 17;
Const. N.Y., art. 1, § 8, Cahill's Cons. L. of N.Y.; Compiled
Laws Ann. N.D. [1913], § 9552; Const. Okla., art. II, § 22,
Compiled Stats. [1921], § 1803; Lord's Oregon Laws [1909], §
2387; Comp. Laws S.D. [1929], § 4085; Rem. Stat. Wash. [1922], §
2425; Const. W. Va. [1872], art. III, § 8; Const. Wis., art. I, §
3.)
3 (Near v. Minnesota, 283 U.S. 697; State v. Chase,
94 Fla. 1071, 114 So. 856; Eldridge v. State, 27 Fla. 162,
9 So. 448; People v. Strauch, 247 Ill. 220, 93 N.E. 126; La
Monte v. Kent, 163 Ill. App. 1; People v. Spielman,
318 Ill. 482, 149 N.E. 466; People v. Fuller, 238 Ill. 116,
87 N.E. 336; State v. Conable, 81 Iowa 60, 46 N.W. 759;
Coleman v. MacLennan, 78 Kan. 711, 98 P. 281; State v.
Brady, 44 Kan. 435, 24 P. 948; Castle v. Houston,
19 Kan. 417; State v. Verry, 36 Kan. 416, 13 P. 838; Perret v.
New Orleans Times Newspaper, 33 La. Ann. 170; Commonwealth v.
Clap, 4 Mass. 163, 3 Am. Dec. 212; Commonwealth v.
Snelling, 32 Mass. 337; Commonwealth v. Blanding, 3 Pick.
[Mass.] 304; Commonwealth v. Bonner, 9 Metcalf's [50 Mass.]
410; State v. Mays, 57 Wash. 540, 107 P. 363; State v.
Pioneer Press Co., 100 Minn. 173, 110 N.W. 867; Oakes v.
State, 98 Miss. 80, 54 So. 79; Wirtz v. Sprecher,
82 Neb. 834; 118 N.W. 1071; State v. Burnham, 9 N.H. 34, 31 Am. Dec.
217; Benton v. State, 59 N.J.L. 551, 36 A. 1041; Drake v.
State, 53 N.J.L. [24 Vroom] 23, 20 A. 747; People v.
Croswell, 3 Johns. Cas. [N.Y.] 337; People v. Simons, 1
Wheeler Crim. Cas. [N.Y.] 339; State v. Mason, 26 Ore. 273,
38 P. 130; State v. Putnam, 53 Ore. 266, 100 P. 2;
Respublica v. Dennie, 4 Yeates' [Pa.] 266, 2 Am. Dec. 402;
United States v. Bustos, 13 Philip. 690; Saunders v.
Baxter, 53 Tenn. [6 Heisk.] 302; Sweeney v. Baker, 134 W. Va. 158,
31 Am. Ref. 757.)
4 "Gen. * * * Fans Far East Fires.
  "Fascist Hawaii defies the President of The United States. It
slaps Secretary of State Cordell Hull in the face. It laughs in
scorn and derision at Secretary of War Harry Woodring.
Deliberately, maliciously, in the face of fair warning and
despite the pleas of our country's leaders, it acts to win for
America the hatred of a nation whose good will is vital to our
nation now. That nation is the new Philippine Nation, eighteen
millions of people whose friendship today is essential to us, and
whose good will Washington is striving to hold. Fascist Hawaii is
making the name American a hissing in the Philippines, aiding
there the aims of propagandists of Asian imperialism. By that our
fascists have brought new peril into the American situation in
the Far East. What is Washington going to do about it? Will it
step in to save American prestige in the Far East now, to save
the honor of the United States Army, as it once stepped into
Hawaii to defend the good name of the navy? For the crux of the
peril of today is that the man who brought about the new danger
is none other than a once-honored chief of the United States
Army. This man * * * for money, shed his country's uniform to don
a lackey's livery. And as a lackey for the HSPA he has trafficked
with the honor, credit and reputation of the United States Army
to stir up international strife that his employers might profit.
A series of events reveals the perfidy of the * * * strategy and
betrayal of American aims. Two months ago President Roosevelt,
vetoing the bill of Delegate Sam King, HSPA stooge, put in to ban
entry of Filipinos to Hawaii, declared the bill menaced American
weal in the Philippines. Behind the President stood the State
Department, with all its knowledge of our Far Eastern needs.
Behind him stood, also, the War Department with all its keen
interest and experience in Philippine matters. `Hands off the
Filipinos,' was Mr. Roosevelt's dictum. But * * * vetoed the
president. `To hell with the Filipinos and Philippine good will,'
and he said it with action. * * * it was who, trading on his
military title and prestige, made peace with the 4,500 Filipino
workers on Maui two months ago. Promised by him, say Filipino
leaders, was end of HSPA war upon workers, and of court
persecution. Now, with open charges, undenied, that * * * lied
and deceived workers who trusted to the honor of the U.S. Army,
Maui is again on the verge of ferment. Instead of peace, * * *
swings the HSPA sword, hurls HSPA mercenaries into the court to
convict the Filipino leaders. And 60,000 Filipino workers cry
out, send word to Manila, and all over their homeland, that
America is a land of persecution, ruled by unprincipled and
revengeful men. Over all their homeland goes word that American
generals are liars and deceivers, schemers to oppress and
imprison Filipinos who are innocent. How can America answer? How
can it deny? How can it meet the whisper of the Pan-Asian
advocate? The schemes of anti-American agitators and
propagandists? America, by act of our kings of fascism intent on
their works of greed and power, becomes a hateful thing to
millions, and thereby the works of our President and our State,
Navy and War Departments are nullified. What is Washington going
to do about it? The Maui case has been a disgrace to the people
of Hawaii. It has been a travesty on American justice, for in it
public power has been seized and used ruthlessly for private
terrorism and revenge. It has been a shame to the Roosevelt
administration through connivance for wrong by the highest
governmental powers in the Territory, the governor and the
attorney general of Hawaii. It has been a signal to the Filipino
people that their sons here will be victimized, abused, robbed of
their rights and liberties under pretense of law and order.
America's waning prestige in the Far East has been put on the
auction block for profit by HSPA's lackey general. What is
Washington going to do about it?"
5 (36 C.J., T. Libel and Slander, § 287, p. 1282; Oklahoma
Publishing Co. v. Kendall, 96 Okla. 194, 221 P. 762, 767;
Cherry v. Des Moines Leader, 114 Iowa 298, 86 N.W. 323, 325,
89 A.S.R. 365, 54 L.R.A. 855; Addington v. Times Pub. Co.,
138 La. 731, 70 So. 784, 786; Ruhland v. Cole, 143 Wis. 367,
127 N.W. 959, 961.)
6 (Stow v. Converse, 4 Conn. 17, 31; Blodgett v. Des
Moines Daily News Co., 113 N.W. [Iowa] 821, 822; Golderman v.
Stearns, 7 Gray's 181, 182; Reynolds v. Publishers Geo.
Knapp  Co., 155 Mo. App. 612, 617, and cases cited,
135 S.W. 103; Beecher v. Press Pub. Co., 69 N.Y.S. 895, 898; Heilman
v. Shanklin, 60 Ind. 424, 441; Watson v. Herald-Dispatch
Co., 221 Ill. App. 557, 560.)
7 (37 C.J., T. Libel and Slander, § 552, p. 106; Brothers
v. Brothers, 208 Ala. 258, 94 So. 175, 177; Dowie v.
Priddle, 216 Ill. 553, 75 N.E. 243, 3 Am.  Eng. Cas. Ann. 526;
White v. Bourquin, 204 Ill. App. 83, 94; Inland Printer Co.
v. Economical Half Tone Supply Co., 99 Ill. App. 8, 17;
Compton v. Wilkins, 164 Ky. 634, 176 S.W. 36, 38; Warner v.
Fuller, 245 Mass. 520, 139 N.E. 811, 815; Van Lonkhuyzen v.
Daily News Co., 195 Mich. 283, 161 N.W. 979, 982, L.R.A.
[1917D] 855; Minter v. Bradstreet Co., 174 Mo. 444,
73 S.W. 668, 680; Russell v. Brooklyn Daily Eagle, 153 N.Y.S. 450,
452; Remson v. Bryant, 62 N.Y.S. 434, 438, 439; Willetts v.
Scudder, 72 Ore. 535, 144 P. 87, 90; Ecuyer v. New York
Life Ins. Co., 101 Wash. 247, 172 P. 359, 362, L.R.A. [1918E]
536; Wilson v. Sun Publishing Co., 85 Wash. 503,
148 P. 774, 779; Quinn v. Review Publishing Co., 55 Wash. 69,
104 P. 181, 183.)