Territory v. Crowley

  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
defendant-appellant 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 and

injury 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 defendant-appellants, 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 not be deemed a justification, unless * * *."
This is the order of the statute. Why distort it? It presupposes
that in the trial, some substantial evidence of truth has been
offered and received. It says simply and plainly: "provided,
however, that such evidence * * *." And then the section goes on
to define a further requirement and necessity before even the
truth can bar conviction for the offense.
 
  Where the defamatory assertions are false, honest mistake of
fact is immaterial.3
  At common law, truth was no defense to criminal prosecution for
libel.4 Hence, logically we start out, in applying this
statutory "justification" in the instant case with the
existence of an article that is a libel per se, that has been
admittedly published, willfully and purposely, therefore
legally malicious. Or, in other words, in the case at bar the
statutory offense of criminal libel is admitted and conviction
necessarily follows from such admissions unless the defendants
show a legal justification created by section 6055, to wit: (1)
the truth and further (2) "that the matter was published [a]
with good motives and [b] for justifiable ends."
  This at once raises the question: What is meant in law by "a
justification"? There is a clear distinction between a "legal
justification" and a "legal excuse." In connection with a
"justification" the benefit under consideration runs to the State
or to the social community as a whole. In such a case the
question arises as to whether or not the specific wrong done to
an individual is offset or nullified by facts of a greater
benefit to society as a whole, so that it becomes of greater
moment to society as a whole that a particular instance be
condoned if the defendant shows that it happened under the
statutory conditions of privilege, whereas a "legal excuse" such
as self-defense recognizes the benefit passing directly to the
individual for his personal self-protection.
  The field of criminal libel illustrates the concept of
"justification" very well. At common law truth of defamatory
publications was no defense at all to prosecution and

punishment. The theory is obvious that prosecution by the State
was preferable to violent retribution by the injured party or his
friends.5 Then the recognition grew that society might be
interested in the truth about the facts involving the acts of
public officials or candidates for public office, however
damaging, if published in good faith under circumstances
recognized in law as privileged occasions. This was extended to
protect fair comment as to acts really provable in matters where
in fact a public interest really existed, but did not recognize
as "legally justifiable" venomous attacks on the personal
integrity or character of either public or private
individuals.6
  In other words, the subject of a "plea of justification," as it
had grown up in the civil law, was gradually brought over by
variously worded statutes as a grant of a privilege to nullify
and avoid criminal responsibility and was offered to defendants,
otherwise guilty, who themselves might show affirmatively that
what they published as fact was (1) true; (2) was published with
"good motives" and (3) for "justifiable ends." The latter,
also, related to benefits to society at large. If the triers of
the fact, representing society, found that a defendant came
within these three barriers to the "place of refuge" they could
stay the punishment.
  In the case at bar error is assigned to the giving of
instructions over the objections of the defendants relating to
this defense. This centers about the giving of prosecution's
instruction number 3: "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."7
  Let it be remembered that the article is libelous per se and
that its intentional publication by the defendants was admitted.
The identity of the victim was undisputed. There was no request
for, nor did the court give, any instruction

characterizing "preponderance of evidence" for creating a belief
in the truth of the assertions of base motives and perfidious
conduct laid out in the article. Hence, as a practical matter
under instruction number 3 and the marginal instructions the jury
were left to find their own standards of "belief." They were told
in other instructions that the credibility of the witnesses and
the weight to be given their testimony was within their exclusive
province. However, let us deal with the question raised by the
last part of instruction number 3. Is it really erroneous as a
matter of law?
  Before proceeding, however, notice must be taken of a trap to
the unwary that exists if the search for authorities on this
issue is carelessly done. Counsel for the Territory have called
attention to the existence of this trap. In many jurisdictions,
the very definition of a criminal libel characterizes it as the
publication of "false and defamatory" matter.
  Obviously, the prosecution which starts from such a necessary
preliminary ingredient is under the burden from the outset and
throughout its case to prove beyond a reasonable doubt that the
article is in fact false. In such cases and under such statutes a
failure on the part of the prosecution to produce some evidence
of actual falsity might even lead to a directed verdict for the
defendant. Under such a statute, defining what is a libel,
obviously the language of instruction number 3 would be
erroneous. Cases from such jurisdictions are cited in the
margin.8 In such a

case any evidence, raising a reasonable doubt as to whether the
assertions were true or false, would go to the essence of the
crime.
  Hence, not only must such cases be eliminated from
consideration at the outset, but also care must be taken that the
manner of argument and approach contained in them does not impel
one into a fallacious form of analysis. A discussion of "legal
malice" and "actual malice" can easily lead to such a result. One
can get into concepts there, as a result of which one really
arrives at supplying unconsciously into the statute itself a
thought as if the word "falsity" really were in the statutory
definition of libel itself. A construction, amounting to placing
the burden on the prosecution to rebut truth beyond a reasonable
doubt, amounts to reading into the statutory definition of libel
that the defamation must be "false." That is not our statute.
Proof of truth and good motives and justifiable ends is, in
Hawaii, a grant of a privilege of immunity to persons who
themselves prove to the trier of the facts that they are entitled
to such treatment by the community whose citizen they have
attacked. If the quality and effect of all the evidence bearing
upon truth (whether appearing in the prosecution's case or
elsewhere) preponderates in the minds of the jury, then the truth
can be said by a reasonable man to

have been made to appear. If not, then the defense has failed to
pass the first barrier to immunity from the consequences of an
admitted defamation.
  It can serve only to confuse by attempting to draw analogies to
cases involving the defense of insanity. In all prosecutions for
criminal acts where intentional conduct is an element, mental
responsibility to harbor such an intent ab initio is a material
factor. If questioned at all, the burden to establish it beyond a
reasonable doubt rests upon the prosecution.
  But malice in fact is not an ingredient of the statutory
offense itself of criminal libel in Hawaii. It becomes a matter
of inquiry only after the defense has proved truth and then has
proceeded to "make it appear" that the offense should be condoned
by affirmatively showing "good motives" and "justifiable ends."
No manner of argument ought to be indulged in to becloud this
clear "burden upon the defendant to prove," if the immunity
from punishment is to be claimed as his right.
  In the instant case that was the effect of the instructions re
the statutory "justification." Theoretical inconsistencies of
instructions were created, if at all, by those consented to by
defendants' counsel. Hence, discounting cases from jurisdictions
where "falsity" is an ingredient of the crime itself, what do the
authorities say? This justification is obviously taken bodily
over from the civil plea as an enlargement of an immunity to be
granted if the defendants show that (1) the publication is true;
(2) that their motive was good; and (3) that the ends were
justified. Mere belief in truth, though an elementary foundation
in some States where the occasion is privileged, is not
enough.9
  It would seem obvious that some standard of proof

known to the law was implicit in this "offer of immunity" under
the circumstances characterized in section 6054 above quoted. The
minimum standard for accepting a fact as "proved" or "made to
appear" is that the evidence in favor of the existence of the
fact preponderates in quality and effect over any
circumstances or evidence against it. It is difficult to follow
the argument that the placing of such a minimum burden of proof
on the defendants "requires that they prove their innocence."
Rather, they are given an opportunity to prove to a jury or other
trier of the facts that, because of the truth and their good
motives and the general occasion, society is more interested in
their immunity from suffering the consequences of their
defamation of another. If proof of any of these factors is
wholly missing, the whole defense falls as a matter of law.
  Yet, under the clear words of the statute, the defense may as
of right put in evidence the truth. In the civil law truth is
proved by a preponderance of the evidence. Hence, the cases
relative to the right of the defendant to escape punishment use
the phrase "the burden is upon the defendant to prove" the
truth. "The statute intended to put upon the party making the
charge * * * the responsibility of making strict proof of the
facts imputed."10 And when a court says the "burden of proof"
is on the defendant, it is submitted that in connection with
immunity in libel cases it means the burden to prove, by a fair
preponderance of credible evidence sufficient to guide one in the
ordinary affairs of life.11
 
  But, still another element for sustaining the court below
appears. A mere inspection of the portions of the article in
issue in the instant case, re "General ``Blank' Fans Far East
Fires," which have been emphasized in the marginal note, supra,
will objectively disclose the extent of proof which must be
sought for in the instant record to present even a scintilla of
evidence of actual conduct on the part of the victim of this
article, justifying a reasonable person even suspecting that he
was participating or had participated in base conduct creating an
international tension from base motives, had dishonored his
former uniform, was a lackey, was a liar, a persecutor for greed,
unprincipled, seizing public power to terrorize innocent men,
etc.
  What does the record in the case at bar show in connection with
the right given under section 6055? "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."
 DIGEST OF RECORD, RE ISSUE OF TRUTH. (1) PROSECUTION'S CASE IN
CHIEF.

At the very outset of the trial the first witness called on
behalf of the prosecution was the individual who was singled out
as the object of attack in the article complained of. On direct
examination he testified that he had served in the United States
Army for forty-four and one-half years. He outlined his career up
to his retirement, being then of the rank of major general. He
was honorably retired within a year of the age when retirement
would have been compulsory. He then became in 1935 and thereafter
acted as the civilian secretary and treasurer of the Hawaiian
Sugar Planters Association, a private commercial enterprise,
familiarly known as the HSPA.
  From April to sometime in July, 1937, there had been a
laborers' strike on some of the Maui plantations, which

ended about July 23, 1937, for those laborers who were satisfied
with the agreement worked out in conferences between the
representatives of the laborers and those of the employers, the
terms of which were embodied in writing in a memorandum signed by
all of the negotiators on July 15, 1937. The witness as
secretary of the HSPA attended and acted in these conferences.
These conferences occurred July 1, 2, 3, 6, 8, 10, 13, 14 and 15,
at which time a written agreement was suggested by the strikers
which was signed to settle the strike on the 15th of July,
1937.
  Upon cross-examination defense counsel sought to anticipate his
defense of "truth" and asked the witness whether at any time in
these conferences prior to July 15 he promised the labor leaders
or told them "as the official secretary of the H.S.P.A. that you
would not prosecute certain Filipinos in a criminal indictment
of conspiracy." The answer: "I never did tell them any such a
thing. On the contrary, I told them just what might happen. I
told them I had nothing to do with the trial; that I had nothing
to do with the prosecution; they had offended the Territorial
law; they were in the hands of the officers of the Territory.
They had been arraigned over on Maui and the jury had been
assembled before I ever went to Maui. They did ask if these men
went back to work what about the trial, and I told them I had
nothing to do with it, but I said, I gave my opinion of why they
had gone on strike. I said ``You went on strike when you were in
a frenzy. You did everything that you could to pull the men out.
You misrepresented the provisions of the Wagner Act; you lied to
the working men; you told them that all they had to do was to
demand of their employers anything they wanted and that the
employers had to give it to them, because the Wagner Act said so,
and that that was not the truth. In other words, you did
anything you could, and while in that state of mind you kidnapped
this man out of the field, tied him hand and foot,

threw him in an automobile and took him to your strike
headquarters. Now since we have been sitting here in many
conferences and arriving at an amicable settlement of this strike
I am willing to admit that you have returned to reason, and
that this incident was a by-product of the strike, but while I
have nothing to do with what the officers of the law may do, if
you have these men back to work in a peaceful settlement on a
permanent basis so that the men who have been on strike do not
harass those who did not go on strike, or vice versa, but return
to a happy life, I will use my utmost endeavor to see that you
get leniency.' And I explained to them what leniency was, and on
several occasions. The first day I made no such explanation, but
the meeting after that, after I had consulted a lawyer, I said to
him, ``These men will have to plead guilty or not guilty, won't
they?' and he said ``There is another, one other thing they can
plead, and that is nolo contendere,' and I said ``What does that
mean?' and he told me, and at another meeting of these men I
pointed out to them ``You can plead guilty or not guilty or nolo
contendere,' and I said ``I would not ask you to plead guilty,
and your lawyer Grover Johnson would not let you, and I don't
think you want to plead guilty, but if you plead nolo
contendere my understanding of it is,' — and I said I didn't
know about this nolo contendere until I had talked to a lawyer
and asked the meaning of it of a lawyer, ``and I am explaining to
you the best I can what it means, and if you plead that way it
means you throw yourselves on the mercy of the court, and in my
opinion you will get a suspended sentence, but I don't know.'
And then I said ``I have done the best I can to explain that to
you, and if you are not satisfied I will bring in a lawyer and
let him explain it,' And Cabe said to me, ``General, you explain
well. We understand. You do not need to bring a lawyer.'" This
explanation was given in the conferences of the 6th and 8th

of July, 1937. (Tr. 20-23, 29.) The witness denied that the
word "dismissed" was used relative to the criminal prosecution.
"I distinctly told them when they asked me, time and time again,
``Do we have to go to Honolulu?', I said ``As far as I know you
do. There has been a change of venue and the court will meet over
there.'" The witness denied that the labor leaders said "they
would not settle the strike unless their criminal cases were
dismissed or ``pau.'" Referring to these labor leaders the witness
said: "They understood completely. They asked me time and time
again if they had to come over here" (meaning to Honolulu) "and
I told them ``yes.' When they came over here they came to call on
me in my office and asked me if they had to go to trial, and I
said ``How many times do I have to tell you that I haven't
anything to do with that,' and they asked me if I would see the
attorney general and have it stopped, and I told them I would
not, ``How many times did I have to tell them?' and they asked me
again, and I said ``What business have I to go to the attorney
general and ask him; he would ask me what right I had to
interfere with the course of the law.' When Verona, who was
Quezon's representative, came, he told me he had heard so many
things one way or the other about this trial that he would like
to bring Fagel and Cabe and Damaso and Quicio up to my office,
and ask me what had happened on Maui, and have me answer him in
their presence, which we did." This happened in August.
  At other places in the cross-examination the same witness said
in re the pending criminal proceedings (of July, 1937), against
the strike leaders: "It was made perfectly plain in numerous
other conferences what that status was, so far as I was
concerned." "On the 10th, as I recall it, when we went over the
various terms of the agreement, I explained to him [Fagel]
about the trial, and asked him if he understood it, and he told
me yes, and it was

satisfactory * * * and I said, ``You insisted on investigations
of a number of Filipino policemen on Puunene Plantation, and a
number of camp bosses on Paia, and you asked me to conduct those
investigations, have a trial, and listen to the complaints
against these men, and I have done that. I have given you a
letter signed by myself giving my findings, because you and the
plantation agreed you would abide by my findings. You have that
paper. What more do you want?' And they said, ``Oh,' they wanted
a paper giving all the terms, so I called in a stenographer and
I dictated in their presence, this statement, and I asked them
if they understood it, and if it was satisfactory and they all
said yes, and I told the stenographer to go out and write it and
she did and brought it back, and I said ``Now, you men, I am going
to read this now. I am going to read it slowly so you will all
understand it. You wanted the paper,' and I did that, and they
said they understood it and it was all right, and so I signed it
and turned it over to Mr. Austin, and he signed it, and I handed
it to them, and they backed off a little. Fagel said, ``Do you
want me to sign that?' and I said ``Sure. Why not? You asked for
it.' ``Why' he said, ``We have to go out and see the men about it.'
I said ``What do you want to see the men about it for? You asked
for a statement and said it was correct, and that is what we
agreed to. Is there any correction you want to make in it?' And
he said ``No, we just wanted to take it out,' and I said ``Sign it
and you can take it anywhere you want to, but you can not take it
out of this office until you have signed it.' They said they
would not sign it. I went to tear it up and I said, ``If you
don't want it, why I will just tear it up,' and Cabe just jumped
up and said ``Don't. Don't do that. We asked for that,' and I
said, ``Sign it,' and he said ``Oh, we go out and talk,' and that
afternoon they came back and I pulled out the paper and I said,
``Are you going to sign this paper? If you are not, I am going to
tear it up. Is there

anything the matter with it?' and I said ``Sit down there and sign
it,' and they sat mute and I took it to tear it up and Cabe
jumped and said ``Don't do it, General. We sign it,' and Cabe and
they signed it." "Q Don't you recall, General, that the reason
they did not want to sign it was because of the ``leniency'? A I
have no idea why they did not want to sign it. Q Didn't someone,
Fagel and these other men, say they would not sign it because you
and Austin had promised them their suit would be pau? Dismissed?
And in the contract you had this phrase here, paragraph 4, ``It
was agreed that if and when the men returned to work on the
Central Maui Plantations, General "Blank," the representative at
the conference, of the Hawaiian Sugar Planters Association, would
use his endeavor with the Territorial officers of the law to
exercise leniency in the cases of the nine men now under charges
for third degree conspiracy.' Do you remember them objecting to
that? A They never gave any reason of that kind at all. On the
contrary, they said all they wanted to do is to take the paper
out, they are going to have a meeting, they wanted to show it to
the men, and I said they could show it to the men as soon as
they signed it. * * * They said it was perfectly satisfactory."
Commencing August 6, 1937, these nine laborers were being tried
in Honolulu on the conspiracy charges, the change of venue from
Maui to Honolulu having been granted about June 23, before the
general got to Maui.
  The witness (still on cross-examination by defendants' counsel)
was asked whether there had not been a second strike "in protest
to this prosecution" and was requested to give his opinion as to
trouble on one plantation. He said: "You could get many
Filipinos to come in here and say that I had double-crossed them.
That is because Fagel would never tell them the truth, when he
left our conferences, of what had happened in those conferences.
He would

go out and hold meetings and tell them that they were not going
to be tried, or that it was just going to be a formality, and
then he would come and tell me ``These men believe me that I am
not going to be tried,' and I said ``Yes, I know they do, and I
know why they do, and you told them,' and I said to Fagel,
``That is a characteristic of your tactics, when you can't get
from me what you want you go out to the meeting and build up a
case with your men, and then come and tell me that you cannot do
this or that because the men won't let you,' and he said
``Hundreds of men believe that you said we are not to be tried,'
and I said ``I know it; because you lied to them.'"
  Then in August (1937) came Francisco Verona. He had formerly
been instrumental in getting certain contracts between the HSPA
and certain Filipinos who had previously had contracts. He was a
prominent newspaperman in the Philippines. He came to Hawaii in
August as the personal representative of President Quezon, having
no official standing but coming to "investigate conditions,"
"listen to grievances" and to report.
  At the request of Mr. Verona that he might bring the Filipino
leaders before the general so as to ask him in their presence
what had happened over on Maui with reference to the trial as he
"would like to know my [the general's] version of it," "I told
him I would be glad to have him bring them in and he did bring
them in, Fagel, Cabe, Damaso and Quicio, the men who signed that
document. He then asked me would I kindly tell him what happened
over there with respect to the trial. I told him that on the 3rd
of July Fagel had asked ``How about our trial?' and that I had
told him that I had nothing to do with it, I hadn't considered
it; that they had offended the Territorial law and they would
have to answer for it, and that I had told them about the state
of mind that Fagel and these men were in at the time they got
them out on strike, whereupon

Fagel got up and started to talk rather loud and said that that
is not true, General, and he said the strike was not for the
reason that we were all excited, we had demands to make, and I
said ``Fagel, sit down. I did say that the strike was called by
your misrepresenting the Wagner Act and these various other
things. That is my opinion. It might not be yours, but that is my
opinion. I told you that over on Maui, and Mr. Verona has
asked me what I said on Maui, and I am telling you. We want the
truth,' and I went all over what I have told you before about
this thing and how I made it plain that I would attempt to get
leniency for them, and explained what leniency meant, and the
pleas that they would have given, one or the other of them, and
discussed the thing with them several times, and I even advised
them to go to Mr. Bevins, the County Attorney, and ask his advice
as to what to plead. The fact that I had told them what they
would have to plead indicated that they would have to go to
trial, as far as I knew. Fagel, in rather a characteristic way,
would jump up from his seat in this conference in my office and
start to talk about something that had nothing to do with the
case, until he got so loud that I said: ``Don't raise your voice
in my office. Sit down until I finish answering Mr. Verona.' He
continued because he saw, I think he saw, what my opinion was. He
saw that he was in a box. And finally I said to Cabe, who was
sitting right opposite, ``You were present at most of the
meetings in Maui; all I think, except two. You heard what I said
on Maui. You heard Mr. Verona ask me a question and you heard my
answer. Did I tell him truly and accurately?' And Cabe said ``Yes,
General,' and I said ``Damaso, you were present at all of those
meetings on Maui, and you heard what I said over there, and you
heard Verona's questions and you heard my answers today. Have I
answered correctly and truthfully?' And he said ``Yes.' And I
said, ``How about you, Quicio,' and he said ``Yes.' I said, ``Mr.
Verona,

is there anything more that I can do?' and he said, ``It seems to
be satisfactory,' and thereupon Fagel said I would say how the
strike was called, and I said ``Yes, I said it and say it now as
my opinion.' Q And your opinion was that Fagel was a liar, * * *
General, or words to that effect? A Why, it is not my opinion,
— it is my knowledge; I know he is. Q You called him a liar? A I
didn't call him a liar, no; I did say this, I said he stated in
that meeting ``There are hundreds of men who believe I will not be
tried,' and I said, ``I know it, because you went out and lied to
them.' I said ``That is characteristic of your tactics in all of
our conferences here. You do not get anything out of me that you
want to get and you go out and hold a meeting under a banyan tree
or where not and talk in Ilocano, and tell them whatever you
please, tell them something, and arrange it the way you want it,
and then you come in and tell me you are willing to do this, but
the men won't let you.' Q Fagel said, did he not, that your
expression of your opinion to Verona was not true? A No, he did
not. Q Didn't he use the words ``Not true?' A He said ``Where you
say we went on strike without any complaints, that we were
satisfied, that we were perfectly satisfied with our pay and with
our housing and with our treatment, that is not so,' he said;
``that is not so,' he said. I told him, I said, and that is my
opinion, ``You went on strike because you had a lot of
rabble-rousers down here who fired you up, and you went down and
misrepresented the Wagner Act. The Wagner Act in itself, I have
no complaint about it at all, but you did not tell the truth
about it. You took a lot of haoles over there and represented
them to be agents of the Federal Government, which they were not,
and they made very radical speeches, speeches which were really a
violation of the criminal syndicalist Act, if any language could
have been.' Q And this conversation that you have just narrated
now, General, took place in the presence of Verona? A Yes. Q
And

was anything said at this conference by Fagel and the other
Filipinos, of the agreement that you had promised, and Austin had
promised, that their case or trials would be pau, given there? A
Fagel might have said that, but when he said, or he started to
do it, the other three men sat with their heads hanging in
shame at Fagel's conduct and they reached up like this two or
three times (illustrating) to pull him down. Q That is your
opinion, General? A My opinion? It is my knowledge. I saw them
do it. * * * When I asked each one of them, ``Have I told him
truthfully,' they all said ``Yes, General.' Q And Fagel still
stood his ground? A Fagel sat there spinning around, yes. Q He
still claimed you and Austin had promised him — — -. A He was
not claiming any such thing. Q What was he claiming? A He was
claiming that when I said the strike was called not because of
insufficient pay or treatment, that I was wrong; that that was
not the truth; that they had gone on strike because they wanted
better wages, that he was claiming that. I said ``That is your
opinion, Fagel. You are entitled to your opinion and I am
entitled to my opinion; that has nothing to do with it. I stated
my opinion over on Maui and state it again.' Q And in spite of
that, didn't Fagel still claim that Austin and yourself had
promised that the trials would be pau? A Yes, he said that, but I
told him it wasn't true."
  This conference with Mr. Verona was on August 12. Questioned as
to whether, at this conference, anything was said about a second
strike having been called on Maui as a "protest strike," the
general answered: "I don't recall any statement being made about
that. Fagel might have said that the so-called second strike, I
believe he did say was because of the fact that they were going
to be tried, and I told him that they could not help it if they
did; he was not making good on his promise; I had never promised
him that they would not be tried. He had gone out and said

that, but if that were the reason that they had gone out on the
second strike, I don't know; that might be one reason, but as
the reports came in, that was not the reason at all. There was a
man named Fredrico Sebastian who had insulted a luna over there,
and they had had a row which continued on for two or three days
until Sebastian had said ``I guess I had better leave this
plantation,' and they said ``I guess you better had,' and he did,
and there were a number of men not turning up for work, and it
resulted in about twelve other men being discharged, and they
stuck out; the other men went back to work. I don't know to the
present time whether that had anything to do with it or not. Q
But Fagel made that representation or claim, didn't he? A Yes,
sure. * * * Q When this gentleman, representative Verona, spoke
to you, General, in the presence of these men, as the duly
qualified representative of the President of the Philippine
Islands, didn't he say something to this effect: that Quezon had
heard rumors, or that it was printed in the Filipino papers, that
you had promised these strike leaders to dismiss their case, and
that he was delegated to find out about it? A No, he didn't
say anything about it having been printed in the papers. Q What
did he say about that, about that matter? A He didn't say
anything. He asked me, he said he had heard here in Honolulu
when he got here different tales from various Filipinos about an
agreement that had been effected in Maui. He asked me if he could
bring these men up and ask me what happened in Maui, and would I
tell him in their presence, and that is all he said, and I did
it."
  "Verona told me that he had no official status; that he was
the personal representative of President Quezon, and asked by
President Quezon to come here to investigate conditions and make
a report to him. Q He did not say that President Quezon was
disturbed by the Maui strike in the Philippine Islands? A No,
he did not."
 
  "Q General, did you have anything to do with signing these
complaints to prosecute these labor leaders, or whoever these
nine defendants were on Maui? A You mean the ones who were tried?
Q Yes? A Absolutely nothing to do with it. * * * I never
complained." (Tr. 37-50.)
  On redirect examination of this same witness he was asked: "Q
Was there any time after July 3rd, that you told any Filipino or
any representative of the Filipino strikers or workers, that if
they would go back to work and call off the strike, that you
would see to it that there would be no prosecution? A I never
told any Filipino that there would never be a prosecution. On the
contrary, I told them time and time again, so far as I knew, the
case would go on; that I had promised if they went back to work
to use my endeavor to get leniency for them, and explained what
leniency was, and told them what they would have to plead, one
of three things; told them I was giving them the best advice I
could, or how they would get off the easiest, which was nolo
contendere, and told them to go to Judge Bevins if they wanted
to and ask him what his advice was, and they said they would go
to him and ask him. There never was a time when Fagel or any
other man ever thought in his own mind that there was any doubt
about what my attitude was, or about what that written agreement
said." (Referring to defendants' exhibit 1.) "Q Can you state
definitely whether in your hearing Mr. Austin ever did or did not
make that statement [referring to the prosecution being
dropped]? A He never did make that statement in my presence.
Q That you know? A Yes. As I recall it, the only statement that
he ever made was something to the effect that they go ahead and
plead, and it was a matter of formality, and they would get off
with practically nothing; a suspended sentence was mentioned by
myself several times and I think by Austin, but I can't recall
just what

Austin said, but I don't think that Walter Cameron, the other one
there who was mentioned by Fagel, I don't remember hearing him
say anything * * * and I am quite sure that in any of our
conversations he said nothing; what he might have said outside, I
don't know."
  After the trial of these men, ending in September, Mr. Fagel
and seven others were convicted of third degree conspiracy.
Relating to this, the general was asked on further redirect: "Q
And after these men were convicted and before they were
sentenced, did you express your wish so far as you could, as a
citizen, with respect to the punishment of those people; whether
they should be on a suspended sentence or what? A I did. I felt
really that I was absolved from any promise that I had made even
with respect to leniency, because of the way these men had acted.
But in order to be perfectly fair and honest and just with them,
I communicated to you, as the assistant prosecutor, that I wanted
leniency extended as far as you could get it from the Judge, and
recommended or asked you to recommend leniency. Q Meaning
thereby a suspended sentence? A Meaning thereby a suspended
sentence. Q And you know, do you not, as a matter of history,
that that recommendation was made by me as assistant prosecutor,
and that all were placed on a suspended sentence, except Fagel
who refused to accept it? A Yes."
  Further recross-examination of the general served to bring out
more detail in the same tenor as the testimony above quoted.
When asked as to whether he, the general, had engaged the
special prosecutor of the kidnapping conspirators, he answered:
"I did not send him over there. * * * I did not engage [him]."
(Tr. 52-60.) (See, post, that much of the above testimony was
later expressly confirmed by defense witness and much left
absolutely uncontradicted.)
  It was stipulated at the trial: that the cases be consolidated
for trial (tr. 4); that Hawaii Sentinel Publishing

Company, Limited, is a corporation and publishes the "Hawaii
Sentinel," a newspaper printed, published and circulated as such
in September and October, 1937, and up to date. (Tr. 8 and 89.)
A copy of the issue of the Hawaii Sentinel, published under date
of September 9, 1937, and carrying on the front page the article
complained of, was admitted.
  The prosecution produced witnesses who testified to the effect
that the defendant Crowley admitted to them that he, as acting
editor of the "Hawaii Sentinel," had revised the article,
authorized it and issued it for publication and circulation in
the paper.
  The prosecution further introduced additional issues of the
paper both before and after the date of the offending article
bearing primarily on the issue of "intentional" publication, and
incidentally on actual malice and ill will should that stage be
reached.
  This was the substantial state of the record when the
prosecution rested its opening case. If the defendants had then
rested, the court would have been justified in charging the jury
to this effect: (1) that the article was libelous per se; (2)
that, if the jury believed from the evidence beyond a reasonable
doubt that the article as appearing in exhibit A was published or
given for publication with the intent that it be published and
circulated by the defendant corporation and that it was so
published and circulated, their verdict should be guilty as
charged.
  But the situation went further. In the instant case the
defendants not only sought to take advantage of their statutory
right to offer evidence of the truth but they sought to
anticipate such a right in the cross-examination of the general
himself. In doing so they were met by the most detailed
exposition of dates and events, prima facie demonstrating the
utter falsehood of every assertion in the article, if the jury
were to believe his testimony. In face of this, at

least prima facie, proof of falsity and keeping in mind that,
under the statute, a libel is not defined as the publication of
"false" statements derogatory to the good name of another, hence
at no time until the truth affirmatively appeared was the
prosecution under the burden to rebut any inference or
presumption of truth as a material element of the offense, — what
did the defendants offer on the issue of truth?
                  (2) THE CASE FOR THE DEFENSE.

The defense first called Antone Fagel as a witness. On direct
examination he described himself as an organizer "for the welfare
of my countrymen who would follow the organization * * * at first
in Maui, but I expect to spread it throughout the Territory." A
strike of plantation laborers started on Maui April 20, 1937.
After several days Fagel put his organization in control of the
striking workers. Fagel became the leader of the strike
laborers. The strike involved about 800, later about 1200, on
one plantation. The strike spread to other plantations on the
Island of Maui, involving about 4000 laborers. As president of
his organization he volunteered his services as leader of the
strike.
  On or about July 1, 1937, he began to confer with the
"General," who was secretary of the HSPA. In the conferences were
about 10 Filipino leaders, including Fagel, the witness, and four
gentlemen representing the employers, including the "General."
Fagel claimed that in July he was the chairman of the laborers'
negotiating committee.
  In May, 1937, Fagel and others had been arrested and charged
with third degree conspiracy in connection with the kidnapping of
a fellow laborer. A mainland attorney represented to be from the
International Labor Defense and CIO came over to defend the
alleged conspirators, arriving on Maui about June 18. Shortly
thereafter a change of venue was granted to Honolulu.
 
  From July 1 to July 15 many conferences were had between the
labor committee and the employers headed by the "General." On
the 15th an agreement was signed. The "General" did most of the
talking for the employers. "About the second or third days of
the conference, I [Fagel] asked General ``Blank' what would
happen to our case in case we settled the strike, we reached a
settlement of the strike, and General ``Blank' said, ``Don't
worry, your case is a by-product of the strike, an outgrowth of
the strike, and when the strike is settled, your case will be
dismissed or dropped.' He told us that. * * * Mr. Austin says,
``Yes, don't worry about your case, it will be pau.'"
  The negotiators reported their conference to their mainland
attorney. The Filipino negotiators finally insisted on a written
agreement being drawn up, which was signed July 15. "We heard
him [the general] dictate it * * * we didn't want to sign
right away at that morning, and they put, — Mr. Austin put it on
his desk." Fagel and his fellow negotiators read the agreement.
"The ``General' said ``if you sign, you can have a copy, but not
before you sign.' * * * When still we don't want to sign, he got
angry, and he said he want to tear the agreement."
  This agreement is defendants' exhibit 1. Fagel read paragraph
4 of the agreement, which speaks about leniency, before he signed
it. When asked about it he said: "This whole agreement does not
mean much to me. I always took the words of a big man, this
great General, and so even if I signed that or even if there is
no agreement, it is the same to me. * * * Q Did you know at the
time what this meant, ``It was agreed that if and when the men
returned to work on the central Maui plantations, General
"Blank," representative at the conference of the Hawaiian Sugar
Planters Association, would use his endeavor with the Territorial
officers of the law to exercise leniency in the case of the nine
men now under charges for third degree conspiracy.' What

was your understanding of that statement? A Well, I can't all
understand that, but I understand he will try his best to have
our case dropped. Q That was your understanding? A Yes. Q Did you
ask General ``Blank' about it; did you make any talk about
leniency and what it mean when you signed the contract? A We
did not discuss that before we signed the contract. Q Did
anyone of the committee on negotiations discuss this paragraph
4? A No."
  In the afternoon of July 15, after talking with the men, the
negotiators signed the agreement (defendants' exhibit 1).
Shortly after that the strikers went back to work.
  Summoned to Honolulu, August 3, for the trial of the conspiracy
case, Fagel went to see the "General," with Cabe, Damaso and
Quicio. "We asked him about our case, why they are going to
continue? Q Yes? A And he said, ``They will not continue; it will
not be continued, and it will be finished right away quick if we
pleaded nolo contendere.' Q Did you understand what nolo
contendere meant? A Well, even in Wailuku he told us about that
plea, after we signed the contract." (The witness disclosed no
conference with the general on Maui after signing the agreement.)
"He talked about the pleading of nolo contendere and plead
guilty, but that there will be no jail sentence * * *. In
Honolulu * * * he called a lawyer. * * * He said that if you
plead nolo contendere that means I was not contest, I did not
contest, you are in the mercy of the court; that is what he said.
* * * We didn't want to pleaded not guilty, I mean to pleaded
guilty or nolo contendere, and then at that time I asked
General ``Blank' if they were going to continue the trial, and
because we were not going to plead guilty or nolo contendere, and
request him to drop * * * [the] special prosecutor."
  "He said, you better plead nolo contendere so that the case
finish quick. * * * I told him no. * * * Q Did you say anything
about the promise he gave you before in July,

when he said the case would be pau or dismissed? A Yes, I told
him many times that. Q What did the General say about that? A
Well, he said he promised leniency but — Q What? A He just
simply said he promised leniency. Q He said he promised
leniency? A Yes, what is in the contract, that is what he stand
for; he does not seem to remember what he promise in the
beginning of the conference. Q Did he ever call you a liar on
this day in question, or a deceiver? A I didn't hear him tell me
that at that time."
  Arraignment of the conspiracy defendants took place in
Honolulu on August 4 and all pleaded not guilty. The trial before
a jury started August 6. Fagel acted as his own lawyer. Also,
Cabe. The mainland lawyer acted for the rest of the defendants.
While the trial was in progress Mr. Verona came to Honolulu.
Fagel met him at the pier. Several days after he arrived in
Honolulu, Mr. Verona arranged a meeting in the "General's"
office. Fagel, Cabe, Quicio and Damaso went with Mr. Verona.
Another gentleman was present with the "General." "Q What was
said by you and what was said by [the general] if anything? A
Well, I tried to repeat what I used to tell General ``Blank,' that
because the trial was proceeding he did not fulfill his verbal
promise to us. I repeat that in Mr. Verona's presence and the
presence of the others, and General ``Blank' kind of got heated a
little bit and he told me I lied. Q * * * What were the exact
words? A That I am a liar. Q And what did you say to that, if
anything? A Well, I told him that he is not telling the truth,
or that he, — that he does not fulfill his promise. * * *
Well, General ``Blank' was explaining to Mr. Verona about that we
should have pleaded nolo contendere so that the case, the trial,
would not be continued, but I told him that we did not want, and
Mr. Verona told him that well, they did not want that kind of
pleading, that is what Mr. Verona told;

we just have some kind of conversation like that. * * * I have
express the opinion that our countrymen in Puunene is going to
have some kind of trouble, or now having some kind of unrest,
because of the continuance of our trial. * * * Q Did you refer to
the protest strike they had sometime in August? A Yes. Q Some
of the laborers? A Yes."
  Then Fagel was questioned about talking to Mr. Crowley, the
defendant in the instant case, and to another "reporter" for the
Sentinel; that he told him of the alleged promise of the
general. The trial of the conspirators was over on September 8
and the defendants were found guilty. The assistant prosecutor
recommended suspended sentences for all of the defendants.
Fagel refused the suspension claiming innocence and was given
and served four months. The others accepted the suspension. (It
is to be remembered that all of the examination and answers of
the witness were conducted in the English language.) (See tr.
91-142.) He had a grammar school and a high school education in
California schools. (Tr. 148.)
  Under cross-examination Fagel admitted that in March of 1937
he got acquainted with labor agitators, on April 10 instruction
on the Wagner Act and the strike on Maui (his place of residence
and "fraternal organization" activities) was started April 20.
"Then Mr. Paredes, our commissioner in Washington, D.C. notify
the strikers or cable here, that the strikers must return to
their jobs without any settlement, and also supplemented by Mr.
Quezon, then I told the associated members that my answer to
Paredes and Quezon is to strike on the entire Maui, and I
called the strike on the entire Maui; that is the time I called
the strike, but I never called the strike at the first day. Q
After the President of the Philippines, Quezon, then, had sent
word to the Filipinos here, to go back, pending settlement, had,
— your answer was that there was going to be a bigger strike than
ever, is that it? A Yes,

they wanted the suckers to go back to work without any
settlement. Q Yes, pending settlement. I understood you to say,
in your direct examination, that the strike started on April 20,
and that ``after several days I put the organization into the
strike and took the leading part.' A Yes, sir. * * * Q And then
by about June 5 to June 10, all the whole island was involved? A
About, yes; about that. Q And then you got the Hawaiian
Pineapple in; that got in to the strike too, didn't it? A All
the pineapple, I mean, except Haiku. * * * Q There was one time
when you were talking about the wages, and so forth, not being
satisfactory to the strikers, and the strikers said the
pineapples were very ripe and the sugar cane was ripe and ready
for milling, and that the thing to do was to not give in but to
stand out, because the pines were very ripe and the sugarcane was
dried, and that was the time to have the big strike? A Yes. * *
* It was in July, during the negotiations of the strike, during
our conference * * *. Q Between July 1st and July 15th. * * *
Q Well * * * did it ever strike you that maybe General ``Blank'
could not keep that agreement, that maybe General ``Blank' did not
run the courts over there, or what did you think about that? A
Well, I thought that he could do it because he is a big
General. * * * Q You thought if he was a big enough General, he
could drop any case in the Territory if he wanted to, and you
didn't think that you ought to go and speak to Mr. Bevins, the
prosecuting attorney, the official right there in Wailuku, and
make sure that this sort of thing was all right; you never
thought of that? A No. Q You know, do you not, that Mr. Bevins
and myself were prosecuting in Maui, both Bevins and I? A Yes,
I know. * * * Q But you didn't think you better go and find out
from the people in the courts, ask Judge — and ask Mr. Bevins
[the prosecuting attorney on Maui]? A No, I didn't take that
pains.

* * * Q You got this notice [as to setting the conspiracy case
for trial] on the 15th of July? A Yes. * * * Q [Then] did
you see Bevins at all; I mean about this case and about this
trial. Did you talk to him? A We went to his office. * * * Q
And did you on that occasion tell him that it had been promised
you that there would be no trial? A No. * * * Q Didn't he
tell you then [on July 30th] that if you wanted to plead nolo
contendere, that he would recommend a suspended sentence, and had
every reason to know that the court would give you a suspended
sentence; didn't he tell you that in the office? A I don't
quite remember. * * * Q You would not deny it? * * * A He might
have said that." In response to a question from the court,
Fagel admitted that he was served with the notice of motion (to
set the conspiracy case for trial) at noon on July 15, before
the agreement (defendants' exhibit 1) was signed by him and the
other Filipino negotiators. (Tr. 167.) "Mr. Egan, the prosecutor
of the National Labor Relations Board * * * gave me [Fagel] many
good advice, and also gave me a copy of the Wagner Act * * *
said, you study this Act * * * said that he doesn't know whether
the whole employees of the sugar industry would be included in
the Wagner Act, but he is sure that the workers in the mill is
under the Wagner Act." (Tr. 170.)
  The next witness for the defense was Florentino Cabe,
another member of the negotiating committee mentioned by the
prosecution's witness. After many days of conference, said Cabe,
"I heard once Fagel been asked General ``Blank' what will become
of the case in which we were arrested; that is when I heard
General ``Blank' said that the case in which we were arrested was
a by-product of the strike, so I did understand, or thought,
we come to a settlement of the strike the case will be
automatically dismissed. * * * I heard that Fagel asked * * *
what will become of our case, and General ``Blank' answered him
that he would not be

worried about the case because that case was only a by-product
of the strike, and was in such words as I heard, I understand
that if we come to a settlement of the strike it will be
automatically dismissed." (Tr. 181, 182.)
  Then being asked about the agreement of July 15, the witness
answered: "In the morning of July the 15th, General ``Blank'
dictated to the secretary, and she write in shorthand, the
agreement we had. As soon as he was through he sent inside her
office and type them up. After about 15 minutes I think she came
out with the agreement; typewritten. * * * Q He refused to give
you a copy. * * * A He said that if we was not going to sign the
agreement he was going to tear them up." (Tr. 185.) "Q Did I
understand you to testify just now that the beginning, — in the
morning of the 15th, General ``Blank' dictated the contract that
was typed by his secretary? A Yes. Q Or was it a day or two
before? A It was two days before the 15th of July, was when the
contract was typewritten. * * * We was supposed to sign the
contract on the morning of July the 15th, but were not still
obliged to sign the contract. * * * We refused to sign because
we can't have any copy to show to the strikers, and we were
afraid in case of anything will happen. * * * Q Did you
eventually sign the contract? A We did. * * * Around 3 o'clock
in the afternoon." Then the witness, after confirming the
general's version of the actual signing, was asked: "Q Now was
anything said that day * * * about that clause of lenience, or
about the promise to automatically dismiss the criminal cases
pending? A That is all I remember." (Tr. 189.)
  During the conspiracy trial Cabe acted as his own attorney;
he talked the strike over in the court corridor with the Hawaii
Sentinel write-up people. He was asked about the conference with
Mr. Verona in the general's office. "Fagel said that General
``Blank' was not telling the truth, he was not keeping his
promise, and what he had promised

on the settlement of the strike. Q And what did General ``Blank'
say? A General ``Blank' jumped up in the air, he stand up, and
called Fagel a liar. * * * Q Do you recall in that conference
Major General ``Blank' not only called Fagel a liar but said that
he was a cheater or deceiver, something like that, about the
Wagner Act? A I understand; I heard that." (Tr. 193-197.)
  On cross-examination Cabe testified that Fagel was
organizing the laborers on Maui before the strike to demand
higher wages. Cabe attended about seven conferences before July
15. He remembered being served by the county attorney with
notice for setting the conspiracy case for trial. "Q On July
the 15th, about dropping this case; just what were the words the
General used? A When Fagel asked General ``Blank' what will become
of our case, the General answered him, not to worry about the
case because that case was only a by-product of the strike. * * *
That is all I remember." Cabe was then shown defendants' exhibit
1, the contract of July 15, a copy of which he had in his own
possession, and his attention was drawn to paragraph 4, re
leniency. He read it before he signed, also heard it dictated and
heard it read after it was typed. "Q Did you ask anybody what
``leniency' meant? A I did not. * * * Q But General ``Blank'
did not use that word, he did not say that the case was going to
be dropped, did he? A During my presence I did not hear it."
(Tr. 207.) Cabe and three other Maui laborers were the "Big
Four" leaders, who acted with Fagel who was not a worker. As to
whether the general had explained about a plea of nolo contendere
before July 15, Cabe said: "I don't remember."
  Four or five days after beginning to select a jury in Honolulu
in the conspiracy case, and about August 11 or 12, Cabe attended
the conference in the general's office with Mr. Verona.
 
  Shortly after the agreement of July 15 was signed Cabe and
the other "leaders" called at the office of the government
prosecuting attorney Bevins. He was asked whether Mr. Bevins
explained the plea of nolo contendere and that he would recommend
a suspended sentence. He answered: "I don't remember. * * * Maybe
he did, I don't know." Nor did Cabe then go to the general to
ask why the case was not being dropped. Cabe remembered Bevins
explaining about pleas and recommendations later, that he Cabe
favored this but wanted to talk with Fagel. (Tr. 216-217.) "Q
Now, Mr. Cabe, haven't you told Mr. Staff Austin, more than
once, that all this talk about General ``Blank' having promised to
drop this case was not true; that all that General ``Blank' had
said was that he would exercise leniency. Haven't you told Mr.
Staff Austin that more than once? A Yes, I have said, what I
have heard, is what I told Mr. Stafford." (Tr. 217.)
  On redirect, Cabe said he was a high school graduate in the
Philippines. At first Fagel did not want a "black and white,
written contract," but the majority convinced him "so we have
something to show to the strikers." In the conference with
Verona and the general "did you do anything with reference to
Mr. Fagel, tell him to sit down? A I pulled his coat." In re
Bevins's explanation to Cabe re pleas, he was asked, on
redirect, "Q He [Bevins] was pretty anxious that you plead nolo
contendere? A No, sir."
  On recross, re his conviction for conspiracy to kidnap, Cabe
was asked: "Q And is it not true, Mr. Cabe, to your knowledge,
that the jury consisted of one Japanese, one Chinese, two
Portuguese, two Hawaiians, one Labor Union man, and five
ordinary haoles, isn't that right? A That is what I remember. Q
And none of them owned one share of sugar stock, isn't that
right? A Yes, sir."
 
  Then Mr. Cruz, one of the strike leaders, testified, on
direct, that on the second or third conference in July, "Mr.
Fagel asked him [the ``General'] if in case the strikers go back
to work, or it will be settled, what will become of the case of
the nine men, and he said, you will not worry about that because
it is a by-product, outgrowth of the strike, and Mr. Austin
said, or General ``Blank' said that it will be dropped or
dismissed, and then Mr. Austin says also that it will be pau."
(Tr. 238.) The witness was not there when the contract was
signed, or at any later conference.
  Mrs. Crowley appeared as a defense witness, stating that she
was the wife of defendant Crowley and owned about ninety-five per
cent of the stock of the Hawaii Sentinel, a corporation. She used
her maiden name as the published name of the editor. On
September 9, 1937, Mr. Crowley was in charge of the paper,
having "supervision over the printing and publishing of this
paper as the editor." She read all the articles appearing in the
issues of the Sentinel after they were published.
  Leo F. Crowley, one of the defendants, became a witness in
his own behalf. On September 9, 1937, he was the president of
this Hawaii Sentinel Publishing Company, Limited, and acting
editor. He admitted the truth of the prosecution's witness's
story that he, Crowley, had supervised, cut down, and
authorized the printing of the editorial in issue in this case
("General ``Blank' Fans Far East Fires"), claiming that it was
within the privileges of a free press. He admitted full
responsibility in fact for the printing, publishing and
circulating of the article. (Tr. 255-256.) "We are going to
continue to do it, because it is the privilege of the free
press." He stated that he had never met the general. "I did not
know the man personally." Mr. Crowley had talked to Mr. Fagel,
during the trial of the conspiracy

case, about a week before the article of September 9 was
published. Mr. Fagel claimed that he had been double-crossed,
"that Major General ``Blank' had promised to dismiss the case if
they made peace, if they settled the strike, and he went into
some details which I don't remember now." (Tr. 259.) He knew of
Fagel before. He knew before the article was written and
published that the conspirators had been found guilty by a jury.
  In cross-examination, by the prosecution, Mr. Crowley was
asked: "Q In other words, if a statement of alleged fact is set
out in a paper, which is false, you do not think a free press has
a right to do that, do you? A If it is an honest opinion based
upon a belief that is honest, the facts may even be, in honesty,
— might be even twisted a little. They have been. * * * Q So
that if I met you at five o'clock in the morning out here on
Kalakaua Avenue and told you that I had just seen Mr. ____ rob
the Bank of Hawaii, and you got out a newspaper, a special
edition, and stated as a fact that Mr. ____ had robbed the bank,
without investigating, you would think that was the freedom of
the press? A No, I would not. That would be ridiculous. Newspaper
men don't do that. Q When Fagel told you that General ``Blank'
had lied to him you immediately made that statement in the press,
didn't you? A No, I did not. Q How much of an investigation
did you make? A I talked to Mr. Fagel. He told Mr. Verona; and
there was a statement made in court [note: no evidence of such
was produced but the prosecution proved the contrary — exhibit F]
and that was brought in by the reporter covering it, a man of
integrity as a newspaper man. Q Well, you didn't think that you
should give General ``Blank' a chance to be heard on that, did
you? A The fact covering this subject of the criticism, and
the editorial, had previously been published and never denied,
in the paper, — If that had been denied, the facts of the court
case had been denied [note:

no evidence was produced by the defense of any statement in
court; the prosecution proved the contrary without
contradiction], there would never have been this criticism of
General ``Blank' but it remained undenied. Q Were you in court
when anything was said about General ``Blank'? A No, I was not.
* * * Q In this article in September 9, this statement * * *
``This man, Major General "Blank," for money, shed his country's
uniform to don a lackey's livery,' do you call that criticism or
comment or a statement of a fact, Mr. Crowley? * * * A That is
opinion. * * * Q And then, ``And as a lackey for the HSPA he has
trafficked with the honor, credit and reputation of the United
States Army,' is that a statement of fact? A Opinion. * * * Q And
on the last page here, ``Now with open charges, undenied, that
General "Blank" lied and deceived the workers,' you mean, the
meaning of that, from your angle, is that you were conveying to
the world that there are open charges undenied that General
``Blank' has lied, is that about it, a fact? A No, that is, — that
was another opinion." In a later issue of the Sentinel, Crowley
admitted that the following language was aimed directly at the
general: "This once slim-waisted model to his subalterns
degenerated into a paunch-bellied stooge of the * * *."
  After Mr. Crowley left the stand the defense rested.
  Let us analyze this record to this point. Boiled down, the
entire testimony, offered by the defense through the witnesses
Fagel, Cabe and Cruz, "to give in evidence the truth of the
matter contained in the publication charged to be libelous," in
fact corroborates in all essential details the previous testimony
of the prosecuting witness tending to show the falsity of the
facts asserted in the article. The greatest height to which the
defense evidence comes on the question of truth is that there
might have existed some misunderstanding resting with Mr. Fagel
as to just what the general had said relative to the continuance
of the prosecution

of the conspiracy case for kidnapping prior to the signing of the
contract of July 15, 1937.
  But it was undisputed that paragraph 4 of this contract, a
simple one-page document which states: "It was agreed that if
and when the men returned to work on the central Maui
Plantations, General ``Blank,' representative at the conferences
of the Hawaiian Sugar Planters Association, would use his
endeavor with the Territorial officers of the law to exercise
leniency in the cases of the nine men now under charges for
third degree conspiracy," was dictated in the presence of the
workers' negotiating committee, including Fagel, Cabe, Damaso and
Quicio; was read to them aloud after it was typed; and was read
by them personally before they signed it on the afternoon of
July 15, 1937. This contract further recites: "At a conference of
representatives of the central Maui Plantations and the strike
leaders of central Maui, held on Saturday, July 10th, 1937,
which was the sixth meeting held for the purpose of discussing
differences, it was finally agreed as follows." At the bottom
of the sheet, in typewriting, occur the words: "This document
made in duplicate, consists of one sheet." The document itself
is dated July 15, 1937.
  It was admitted by Fagel and Cabe that, on the very day this
document was dictated, read and signed, and between morning and
afternoon sessions of the conference, they were served with a
notice to appear in court to set this very conspiracy case for
trial. It was admitted that the Maui prosecuting officer
discussed with them the possible pleas and his willingness to
recommend a suspended sentence on pleas of "nolo contendere"
and that he had every reason to expect that his recommendation
would be acceptable to the presiding judge. It was admitted by
the defense witnesses in the instant case that the jury which
convicted the conspirators was a mixed jury, no member of which
owned one share of sugar stock.
 
  This was the status of the case at bar when the defense rested.
There was not one iota of proof of any fact justifying,
rationally, the truth of any inference contained in the title of
the editorial complained of that "General ``Blank' Fans Far East
Fires"; which title connected with the supporting articles
justifies in toto the meaning supplied by the innuendo of the
complaint.
  There was nothing in said evidence justifying by the faintest
imagination the statements: "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. * * * 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." While it might be
quibbled that isolated parts of the above assertions of fact are
not, separately considered, definitely up to this point libelous,
and hence, in offering evidence of truth, the defendants were not
required to substantiate them, yet the tenor of the whole
article, as directed against one individual, is so cohesive in
its obvious endeavor to "injure the fame, reputation or good name
of another person, and bring him into disgrace, abhorrence,
odium, hatred, contempt or ridicule" that the absence of one iota
of fact to support these introductory assertions in the article
justifies the libelous meaning

inherent and intended to be imputed in them and becomes relevant
in determining if there was any defense amounting in law to a
defense of truth to submit to the jury.
  Considering all of this evidence in its most favorable light to
the original defendants, now plaintiffs in error, there is not
the slightest showing of any act done or performed by the victim,
against whom this article was directed, even to indicate in the
slightest degree conduct justifying an accusation that he had,
for base motives, severed his connection with the army to become
a subservient tool of private business interests. There was not
even a scintilla of evidence to justify the following slanderous
assertions or imputations: that "trading on his military title"
he "lied and deceived workers who trusted to the honor of the
U.S. Army"; that he "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." Each and every part of the
foregoing assertions or imputations in the article is libelous
per se. The printing

and publishing of it was admitted to have been intentionally
done.
  In other words taking each assertion of fact in the article, as
well as the article as a whole, and comparing the assertions
there and its whole tenor with the proof as summarized above,
there was at the time in which the defense rested not only no
"substantial" evidence supporting the truth of the facts upon
which the article purports to be based, but there was no
evidence at all of the substantial truth of anything purporting
to be a basis for this uncalled-for and vicious attack on a
private citizen.
  No effort to check the truth was shown. No evidence that any
person who made the slightest effort to check had found the
slightest basis even for suspicion against the victim of this
article. On the contrary, even Mr. Verona was apparently
satisfied with the "General's" absolute integrity.
  It is regrettable that so much laborious effort seems to be
required to demonstrate the utterly defenseless situation. But
when it is asserted that a piece of gold (the truth) is really
concealed in what appears to be a ton of sawdust, the only way to
exhibit the fallacy of such an assertion seems to be to rake over
every bit of sawdust openly and to demonstrate for independent
check that every glint of yellow that might appear comes no
closer to the semblance of the gold being searched for than a
handful of scattered grains of "iron pyrites."
  Incidentally it might be touched upon here that it is alleged
to have been error on the part of the prosecution to introduce,
as exhibits, other issues of the Hawaii Sentinel published before
and after the date of the article in question. Whatever may have
been the reasons for permitting the introduction of these
exhibits by the trial court at the stage of the trial procedure
at which they were introduced, it can be said that the burden was
then upon the prosecution

to show that the publishing and circulating of the article
complained of was intentionally and not inadvertently done. Prior
to the admission by the defendant Crowley that he consciously and
knowingly corrected and issued for publication the article in
question, this intentional publication was a matter for the
prosecutor to show. These samples of the workmanship of the
Sentinel, bearing upon the same charges and accusations, were
relevant to that issue of intentional publication.
  The prosecution might well have rested at the close of the
defendants' case and requested an instruction forthwith to the
effect: "The printed article in question is libelous per se;
the defendants admit that it was published and circulated by
them; there is no evidence of the truth of the facts asserted
which would justify such a publication if made intentionally and
not inadvertently; therefore if you believe beyond a reasonable
doubt that the publication and circulation was intentionally made
then legal malice is inferred and you should convict." But the
prosecution did not then rest, nor did it then request such an
instruction. It introduced witnesses in rebuttal who gave further
testimony re the facts of the labor conferences, thus affording
the defendants by cross-examination a further opportunity to
refine out a possible grain of truth to support the truth (?) of
the defamatory assertions.
                          (3) REBUTTAL.

Mr. Pflueger testified. He has been the assistant secretary
of the HSPA, connected with it since 1922. He was examined as to
the open conference between Mr. Verona, the general and the four
Filipino strike leaders in August of 1937. Asked to tell what
occurred, in his own way, he confirmed throughout, without
repeating it, the general's version of this conference. (Tr.
291-294.)
  Mr. Pflueger was thoroughly cross-examined by the

defense. It can be summarized in the witness's words: "General
``Blank' repeated his story and asked the other strike leaders if
his story was correct * * * that if they got these men back to
work peacefully that he would use his endeavor to have the
officers of the law exercise leniency * * * asked each one in
turn, * * * directly, if that story that he just told them was
correct * * * it was not a long story * * * it took me five
minutes to tell you * * * they said that the way he told it was
correct. * * * They did agree to it. They said ``yes.' * * * He
went through this whole piece again, and then he asked each one
a second question, ``Did I say anything here that I did not say
on Maui, or did I leave anything out?' and they said, ``No.'"
(Tr. 294-300.)
  Stafford Austin was produced as a witness for the prosecution
in rebuttal and subjected to cross-examination. He identified
himself as manager of the Wailuku Sugar Company since 1932. He
attended all the labor conferences on Maui, about ten in all,
starting July 1. In re alleged promises of the general as to the
criminal cases pending the witness said: "On a number of
occasions * * * Mr. Fagel would say, ``What is going to happen to
our case?' and the General said that the case was now in the
hands of the Territory and government, in the hands of the
government, and he had no jurisdiction over the case, but he
would use his good offices to try to get them leniency in this
case, and in one meeting he explained the word ``nolo
contendere' to these men, wrote it out on a piece of paper and
then explained it, said it meant that they would throw themselves
on the mercy of the court, and they would probably get a
suspended sentence." (Tr. 306.) Then the witness continued re
the meeting of the morning and afternoon of July 15, the
dictating, reading and signing of the written agreement,
thoroughly confirming the version given in the case in chief by
the "General." The witness stated

that the "General" never stated that the pending criminal case
would be "dropped" or "dismissed." (Tr. 309-311.) The witness
denied ever using the word "pau" in relation to the case, always
referred questioners to the "General," but he did often say
"Well, now, if this is agreeable to everybody, why I hope that
the strike is pau and that all the men will go back to work."
(Tr. 311.) In cross-examination he said: "I could not have
used the word pau for the trial, because I did not have anything
to say about the trial." (Tr. 320.)
  The court reporter at the trial of the "conspiracy case" was
examined, testifying that no reference to any purported "broken
promises" came out in open court during that conspiracy trial, —
this to rebut one element of Crowley's so-called investigation of
the truth, also there was no evidence at that trial that the
general attempted to have anything to do with the conduct of the
conspiracy case.
  The naive assumption that these high school graduates, who were
active members of the "Big Four" leaders of the Filipino workers,
really in fact were misled to believe that the retired general as
secretary of the HSPA was the dictator as to the enforcement of
territorial laws beyond the transparently simple language of
their own agreement that he "would use his endeavor with the
Territorial officers of the law to exercise leniency," remains as
the sole "gilded" grain after all this sifting. To justify this
as legally sufficient under any theory of the law to submit to a
jury on a defense of truth for such a scurrilous article as the
one in question sufficient to justify acquittal would be a
travesty on the concept of truth. While in the rush and pressure
of trial procedure, a trial court may be exonerated for leaving
the legal issue open when no request was directly and clearly
presented curtailing the issues, this court would not be so
excused, in face of a record so lacking in any defense. It is not
a question of credibility of

witnesses or weight of testimony, but one of the existence or not
of any truth at all.
  Attention is hereby called to section 3744, R.L. 1935, relative
to the powers of the court in charging the jury: "The court shall
instruct the jury regarding the law applicable to the facts of
the case, and may, in a criminal case, make such comment on the
evidence and the testimony and credibility of any witness as in
its opinion is necessary for the proper determination of the
case." The only qualification, if the court does comment, is to
inform the jury that they are the exclusive judges of all
questions of fact. And under section 3742: "The court may,
however, charge the jury whether there is or is not evidence
(indicating the evidence, if any) tending to establish or rebut
any specific fact involved in the case." (Emphasis added.)
  One further assignment of error remains to be dealt with. The
defense makes a claim of "qualified privilege" said to be
guaranteed under article I of the amendments to the Constitution
of the United States relating to "freedom of speech, or of the
press." Unless a special privilege affecting the press itself is
granted by local statute (as, e.g., in North Carolina, supra,
marginal note 8), there is no "freedom of the press" beyond the
ordinary "freedom of speech" accorded to the humblest
citizen.12 It is a right subject to punishment for its
abuse under the police power.13 Untrue defamatory
statements (or imputations) of fact even against a public servant
or candidate for office are never privileged, except under
special local statutory extensions of special privilege clearly
bordering on so-called

fair comment.14 Criticism and fair comment carry to the
public acts proved or admitted, not to the motives and character
of a private citizen.
  The law has been heretofore referred to, that this does not
cover abuses of "freedom" nor is it synonymous with "unrestrained
license" so as to prevent punishment for false defamation, or for
true defamation published without legal justification from "good
motives or justifiable ends."
  Defendant Crowley, as a witness, made the claim and his counsel
argues in the briefs that the article comes under the guise and
privilege of "fair comment." It is suggested that a strike or
relations of capital and labor are the subject of "fair comment."
Granted as a general abstract principle, but this article is not
directed to such relations in general nor to the Maui strike in
particular, but to alleged base motives, perfidious character,
alleged deceit and lies, greed and persecution in connection with
the supposed conduct and acts of a definite individual, — and
not one act by such individual is given in evidence in the trial
justifying a reasonable man even to suspect, much less assert,
that such defamatory accusations bore the slightest semblance of
truth. False charges are asserted in the form of statements of
fact directed to the alleged conduct of a definite man.
  Again, it is suggested that the subject of international
relations and their possible impairment is a matter of public
interest, hence subject to "fair comment." Granted again as an
abstract theory. But nowhere in the record is any fact shown even
faintly indicating that the victim of this attack was actually a
party to any act, or himself initiated any, that even touched
upon international relations in any respect, much less in the
base setting impugned.

The dragging into the case of the incidents with the personal
representative of the president of the Philippine government
developed no dissatisfaction on his part or of any other
"international" person, with the conduct of the individual
traduced by the defendants.
  From the mouths of the defense witnesses themselves,
admitting the satisfaction with the strike settlement and their
signatures to the agreement of July 15, placed there when they
had just been served with notice of further proceedings in the
pending criminal case; from their admitted talks with the
government's prosecuting attorney; from their conduct when faced
with the facts in the presence of Mr. Verona; from their
conviction by due process of law before an impartial jury; from
the recommendation of suspension of sentence and the granting of
it; from these admitted facts and the affirmative showing of
nothing else; from the uncontradicted detail of other conduct of
the general and his associates, the falsehood is shown as to
every assertion in the article. Far from being comment or
criticism, the article is an unprincipled parade of defamatory
falsehood printed and published under the guise of facts. The
"wagon" may be dressed up in argument with fancy trimmings
disguised as "matters of public interest," but the cargo is
composed of "unadulterated garbage," the property of the writers
and publishers, who show no justification for depositing it on
the "head of their victim." It needs purification in the
cleansing fires of conscience before it is fit even for the roots
of the "tree of knowledge."
  In addition to all the grounds heretofore stated, one further
factor exists for sustaining the result in the court below. Under
section 3563: "The supreme court may affirm * * * judgment or
sentence of the trial court * * *. But no order, judgment or
sentence shall be reversed or modified unless the court is of the
opinion that error was committed which injuriously affected the
substantial rights of the plaintiff in error."
 
  In regard to the sentence imposed the trial judge had the
defendants before him. He had the opportunity to observe the
demeanor of the defendant Crowley while a witness. He had means
of observation denied to this court, as to what correction
appeared to be necessary to strike through the morbid egotism of
the defendant, who embellished the unchecked complaints of the
childish egotism of a convicted conspirator, so as to awaken
defendant's conscience and free his talent from a blindness that
lets him resort to attempted "assassination" of the character of
a private citizen, to an awareness that his conduct is an abuse
of the real guarantee of liberty established by the Constitution
over a free people. From the record before us, the trial judge
used great restraint in a flagrant abuse of sacred rights of a
private citizen. To reverse such a case, under such clear
evidence of violation of the criminal laws, on such a flimsy,
imaginative, so-called defense, would be a travesty of justice.
  No substantial rights of the plaintiff in error are shown to
have been "injuriously affected." They obtained a submission to
the jury that was not only not in error but was beyond what the
record in this case shows they were entitled to under the libel
proved and callously admitted when the publication was admitted
(and for good measure proved to have been clearly intentional)
and with a record showing a total absence of proof of truth, or
of circumstances making it "appear" that the inexcusable slander
"was published with good motives and for justifiable ends." On
the contrary the record shows a malicious imagination presently
running riot with a total disregard for truth.
  We have carefully considered all of the assignments of error
and find them without merit. The judgment of the lower court is
affirmed.
1 "Gen. ``Blank' 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.
  * * * 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, Major General ``Blank,' 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 ``Blank'
strategy and betrayal of American aims.
  Two months ago President Roosevelt, vetoing the bill 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 General ``Blank' vetoed the president.
  ``To hell with the Filipinos and Philippine good will,' and he
said it with action.
  General ``Blank' 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, end of court persecution.
  Now, with open charges, undenied, that General ``Blank' 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, General ``Blank' 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?" (Emphasis added.)
2 This conclusion is in harmony with the law in Hawaii and
the common law. (Ter. of Haw. v. Wong Shui King, 14 Haw. 614,
620; Kahanamoku v. Advertiser, 25 Haw. 701; Baldwin v.
Tribune-Herald, 30 Haw. 610, 617; Cooley, Torts [3d ed.], p.
402; 3 Greenleaf, Evidence [16th ed.], § 164; Newell, Slander and
Libel [4th ed.], §§ 804, 806, 827, 828, 830; McLain, Crim. L.,
ch. 45; Washington Post Co. v. Chaloner, 250 U.S. 290, 293;
Pollard v. Lyon, 91 U.S. 225, 230, 23 L.ed. 303, 311, 312;
Colvard v. Black, 36 S.E. [Ga.] 80; State v. Sterman, 202
N.W. [Iowa] 222; State v. Cooper, 116 N.W. 691, 692; Cole
v. Commonwealth, 300 S.W. [Ky.] 907; State v. Norton,
36 A. 394, 395; Commonwealth v. Wardwell, 136 Mass. 164;
Paxton v. Woodward, 78 Pac. [Mont.] 215; Johnson v.
Commonwealth, 14 Atl. [Pa.] 425; Van Ness v. Hamilton, 19
Johnson's [N.Y.] 296; and many others.)
3 (State of Iowa v. Haskins, 109 Iowa 656, 80 N.W. 1063;
State v. Wait, 44 Kan. 310, 24 P. 354; Richardson v.
State, 66 Md. 205, 7 A. 43; Commonwealth v. Snelling, 15
Pick. [Mass.] 337; State v. White, 29 N.C. [7 Ired. L.] 180;
State v. Colby, 126 Atl. [Vt.] 510; note 74 A.L.R. 733.)
4 (See Newell, Slander and Libel [4th ed.], §§ 575, 700;
Odgers, Libel and Slander, p. 538.)
5 (See Newell, Slander and Libel [4th ed.], §§ 807, 809, 828,
830; State v. Gardner, 112 Conn. 121, 151 A. 349; Coleman
v. MacLennan, 78 Kan. 711, 98 P. 281; Commonwealth v.
Clap, 4 Mass. 163, 3 Am. Dec. 212; Commonwealth v.
Snelling, 15 Pick. [Mass.] 337; State v. Levand, 37 Wyo. 372,
262 P. 24.)
6 For the history of this development in Massachusetts see
Perry v. Porter, 124 Mass. 338; Newell, Slander and Libel
(4th ed.), §§ 658, 715; Dorr v. United States, 195 U.S. 138,
49 L.ed. 128.
7 In addition to this instruction the court gave other
instructions re burden of proof as follows: "I instruct you that
the elements necessary to make out a case of criminal libel are a
publication in writing * * * 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.)
  And further, the court instructed the jury with the consent of
the defendant: "I instruct you that unless you believe that the
allegation that General ``Blank' 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 General ``Blank' did lie and deceive as
alleged in said publication, then the privilege or freedom of the
press applies." (Prosecution's Requested Instruction No. 19,
given by agreement.) Also, the court instructed the jury: "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.)
  And further: "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.)
8 (McArthur v. State, 59 Ark. 431, 27 S.W. 628; Graham
v. State, 7 Ga. App. 407, 66 S.E. 1038; State v. Pierce, 12
Pac. [2d] [Ore.] 321; Kelly v. State, 195 S.W. [Tex.] 853.)
  Considerable discussion has been indulged in as to State v.
Publishing Co., 179 N.C. 720, 102 S.E. 318. The citations in
this case are from civil cases showing a doctrine existing in
North Carolina in civil suits prior to 1891 (see Ramsey v.
Cheek, 109 N.C. 270, 273), that "if the words are actionable
per se, the law presumes malice * * * unless the communication
is privileged." At least as of 1901 there appears in the laws of
North Carolina that a special procedure applied re newspapers.
(See 1 Cons. Stat. of N.C. 1919, §§ 2429-2432.) These sections
have been continuously applied, re analogy to civil suits, as
creating a qualified privilege re public officials and candidates
for public office, requiring proof of falsity or of actual
malice. Section 4229 of said laws also provides: "If any person
shall * * * transmit * * * any false and libelous statement * *
*." (See also section 4230 re slander of "innocent" woman.) In
other words by long precedent in North Carolina, proof of a
qualified privilege in connection with newspapers presents a
special situation coloring all the decisions from that State.
  In regard to State v. Bush, 188 Ind. 48, 23 N.E. 677, a
study of the cases cited to support the "reasonable doubt of
truth" rule, will easily dispose of it. They are cases of murder
trials involving defense of insanity. After the Bush case, the
Indiana legislature passed legislation re libel, requiring that
the defamation be false as a primary ingredient of the existence
of a criminal libel, not as part of an affirmative immunity, for
an admitted libel.
9 (State v. Bienvue, 43 La. 239 [36 La. Ann. ed. 378].
See also, State v. Conable, 81 Iowa 60, 46 N.W. 759; State
v. Cooper, 138 Iowa 516, 520, 116 N.W. 691.)
10 Commonwealth v. Snelling, 15 Pick. (Mass.) 337. (See
also People v. Strauch, 93 N.E. [Ill.] 126, 132; People v.
Fuller, 238 Ill. 116; Perry v. Porter, 124 Mass. 338;
United States v. Sotto, 38 Philip. 666, 673; State v.
Fosburgh, 32 S.D. 370; 37 C.J. 153; 17 R.C.L. 420; Newell,
Slander and Libel [4th ed.], p. 765.)
11 (See The King v. Gibson, 6 Haw. 310, 312, 313;
Commonwealth v. Snelling, supra; State v. Gardner,
112 Conn. 121, 151 A. 349, 350; State v. Bienvue, 43 La. 239
[note 9] [36 La. Ann. ed. 378]; Commonwealth v. Bonner, 9
Metc. 410; Pickerell v. State, 198 S.W. [Tex.] 303;
Browning v. Strauch, 93 N.E. [Ill.] 126, 132; People v.
Fuller, 238 Ill. 116; Perry v. McClure, 3 W.N.C. [Pa.] 58;
United States v. Ocampo, 18 Philip. 1, 55.)
12 (See Wright v. Tribune-Herald, 31 Haw. 128, 139;
Lyman v. Hilo Tribune, 13 Haw. 455; Schenck v. U.S.,
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; People v. Croswell, 3 Johns. Cas. 337-393;
Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548, 555.)
13 (See In re Nelson, 103 Mont. 43, 60 Pac. [2d] 365,
371-372; Robertson v. Baldwin, 165 U.S. 275; Near v.
Minnesota, 283 U.S. 697, 708, 713-715; Stromberg v.
California, 283 U.S. 359, 368; Commonwealth v. Blanding, 3
Pick. [Mass.] 304, 15 Am. Dec. 214.)
14 (See Wright v. Tribune-Herald, 31 Haw. 138; Burt v.
Advertiser Newspaper Co., 154 Mass. 238; Commonwealth v.
Duncan, 127 Ky. 47, 104 S.W. 997; Oakes v. State, 198 Miss. 80,
54 So. 79; 25 Harv. L. Rev., p. 475; Odgers, Libel and
Slander, p. 37; and other cases heretofore cited in the notes.)