I respectfully dissent.Both defendants should be granted a new trial. The trial court committed reversible error by instructing the jury as requested by the prosecution that it was incumbent upon the defendants to prove justification by a preponderance of the evidence.
The court, at the request of the prosecution, charged the jury as follows: "You are instructed that the burden is on the Territory in these cases to prove beyond a reasonable doubt that defendants (or either of them) published, or aided in the publication of, a libelous article as charged; but once such publication is proved to your satisfaction beyond a reasonable doubt, the burden is thereafter upon such defendant or defendants to prove to your satisfaction, by a preponderance of the evidence, that the charges of lying and deceit contained in the article were, at the time of its publication, true and, further, that they were published with good motives and for justifiable ends." (Prosecution's Requested Instruction No. 3.)
The following instruction, requested by the defendants, was refused: "I instruct you, that after considering all the evidence and the surrounding circumstances attending the publication of the said article in question, you are convinced beyond all reasonable doubt, that a libel was published of and concerning Major General Wells; you will next consider the matters of defense, and in this regard I charge you, that defendants under their plea of not guilty, have introduced evidence of the truth of the statement of facts published in said opinion and criticism of the publication in question. I instruct you, that Truth is a complete defense to a charge of Criminal Libel if made in good faith or for justifiable ends; and in this connection, I instruct you, that in criminal law, the defendants are not bound to prove that the publication was made in good faith to entitle them to an acquittal, nor are the defendants *Page 827 required by law to introduce any evidence tending in that direction. If the statement of facts, published in the opinion and criticism of said publication, were, in fact, true, the defendants are not guilty of the crime charged. Further I instruct you, that under the law, the defendants are not required to prove the truth of the publication, or to prove anything for that matter, to entitle them to an acquittal. The question for your consideration in this regard, is this, that, if from all the evidence introduced in this case, a reasonable doubt arises in the minds of the jury, as to the truth of the statement of facts published, then I charge you, that you should resolve that doubt to the benefit of the defendants and you will find the defendants not guilty." (Defendants' Instruction No. 22.)
The only other instructions given by the court upon the burden of proof were as follows: "I instruct you that the elements necessary to make out a case of criminal libel are a publication in writing, print or by picture, statute, sign or representation, other than by words merely spoken, which directly tends to injure the fame, reputation or good name of another person, and bring him into disgrace, abhorrence, odium, hatred, contempt or ridicule or cause him to be excluded from society. If you find beyond a reasonable doubt that the defendants, or either of them, maliciously put into circulation the newspaper article set out in these charges (which, taken as a whole, is a libelous article) or promulgated, exhibited or distributed the same for the purpose of making it known to others, and have thereby in fact made it known to others — or have in any way aided or assisted in so doing — I instruct you that they have published a libel." (Prosecution's Requested Instruction No. 5.) "I instruct you that unless you believe that the allegation that * * *1 lied and deceived workers (as *Page 828 contained in the newspaper article of September 9th, 1937) is true, there is no privilege or freedom of the press that will condone the publication of that statement. But if you believe from all the evidence that * * * did lie and deceive as alleged in said publication, then the privilege or freedom of the press applies." (Prosecution's Requested Instruction No. 19.) "I instruct you that the issue which you are to try is that presented by the information, and the defendants' plea of not guilty in this case. For be it remembered, that the plea of not guilty puts in issue and requires the prosecution to prove each and every material allegation in the information beyond all reasonable doubt." (Defendants' Instruction No. 2.) "The burden of proof, as those words are understood in criminal law, is never upon the accused to establish their innocence or to disprove the facts necessary to establish the crime for which they are charged. It is on the prosecution from the beginning to the end of the trial and applies to every element necessary to constitute the crime." (Defendants' Instruction No. 6.)
It is axiomatic that in a criminal case it is incumbent upon the prosecution to prove all of the essential ingredients of the offense charged beyond a reasonable doubt.
In order to constitute the statutory offense of publishing a libel the defamatory matter must be published maliciously. "The publishing of a libel is the maliciously putting of it into circulation, or the promulgating, exhibiting or distributing of it for the purpose of making it known to others; and thereby in fact making it known to others; or aiding or assisting therein, or the causing or promoting thereof." R.L. 1935, § 6053. One of the essential ingredients of the offense of publishing a libel therefore is malice. Malice is of the essence of the offense. The corpus delicti of the offense of publishing a libel is the malicious publication *Page 829 of the libelous language. The malice to which I here refer is malice in its legal sense meaning a wrongful act intentionally done without any justification or excuse and not malice in its popular sense meaning hatred or ill will. The statute declares: "Malice is shown, in respect of libel, by making a publication or communicating it to others, wilfully and purposely to the prejudice and injury of another. Hatred or ill will towards the party injured is not essential to libel." R.L. 1935, § 6054.
But the legal inference that may be drawn from the making of a publication willfully and purposely to the prejudice and injury of another without justification or excuse is not conclusive or irrebuttable. On the contrary, the presence or absence of malice is a rebuttable inference. And from whatever source the evidence may emanate, whether from the prosecution or from the defense or both, absence of legal malice is a complete defense. Truth which is inconsistent with malice is also a complete defense if published with good motives and for justifiable ends. The statute recognizes this. It provides: "In every prosecution for writing or publishing a libel, the defendant may give in evidence in his defense upon the trial the truth of the matter contained in the publication charged to be libelous; provided, however, that such evidence shall not be deemed a justification, unless it shall be further made to appear on the trial that the matter was published with good motives and for justifiable ends." R.L. 1935, § 6055.
A "motive" is what induces action; it is the specific mental cause of bodily action. Motives may be good or bad. "End" is a general term signifying the thing that ends one's wishes or endeavors; the consummation of a scheme. The "end" is that which terminates any course or proceeding. The "end" may or may not justify the action or the means employed for its attainment. The meanings and connotations of the phrases "good motives" and "justifiable *Page 830 ends" as terms of limitation upon the right of the defendant to give in evidence in his defense upon the trial the truth of the matter contained in the publication alleged to be libelous, are well-known and enable those "within their reach to correctly apply them." They have an historical legal background originating in the common law. They and terms of similar import had a well-settled common-law meaning. They have been adopted by many of the States both by incorporation in their constitutions as a part of the definition of free speech and as a statutory limitation upon truth as a defense. The marginal note2 indicates the extent to which these terms have been employed in constitutions and statutes of the several States. Newell, Slander and Libel (4th ed.), in sections 697 and 700, at pages 764 and 768, points out instances where the terms "good motives" or "justifiable ends" or terms of similar import have been used legislatively to limit the defense of justification. In the celebrated case of People v. Croswell, 3 Johns. Cas. 337, 360, General Hamilton, the attorney for the accused, advanced the contention that the liberty of the press consists of the "right to publish, with impunity, truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals." And this definition was adopted by the supreme court of the *Page 831 State of New York in its opinion by Kent, J., as a perfectly correct, comprehensive and accurate definition of the true standard of the freedom of the American press. No case has been called to my attention and personal industry has developed none where any question has arisen as to the meaning of those terms or their application. The cases cited in the accompanying marginal note3 are instances of the acceptance of those terms in all their historical and legal significance and their application to the defense of justification under statutes similar to ours where truth of the matter contained in the publication charged to be libelous was a complete defense where it also appeared that the libelous matter was published with good motives and for justifiable ends. From the English and American authorities to which I have had access, in which the same or similar terms have been construed, I conclude that as applicable to truth as a defense, the term "good motives" means that the publisher was not motivated by malice but, on the contrary, was motivated by good motives consistent with the relations the publisher bore to others and that the term "justifiable ends" means that the end was justified by *Page 832
the occasion which motivated the publication, to wit, matters giving rise to privileges, including fair comme upon matters of public concern. The phrases "good motives" and "justifiable ends," as adopted by Hawaii and incorporated in the libel law, must be taken with their respective accepted legal meanings. (Seven Cases v. U.S., 239 U.S. 510, 517.)
It must be apparent that "good motives" are the antitheses of legal malice. "Justifiable ends" rebut malice. And where, as here, truth as a justification presupposes falsity, that truth is inconsistent with malice when published with good motives and for justifiable ends.
The trial court admitted evidence offered by the defendants of the truth of that portion of the defamatory article which charged that the person defamed had "lied and deceived workers." (Prosecution's Requested Instruction No. 19.) A showing that the defamatory matter was published with good motives and for justifiable ends is, under the statute, a condition precedent to the receipt by the court of evidence of the truth of the matter contained in the publication charged to be libelous. The receipt by the court of evidence offered by the defendants of the alleged truth of the matter referred to and contained in the publication charged to be libelous was tantamount to a conclusion by the trial judge that as a matter of law the occasion of the publication was a matter of public concern and subject to fair comment and that if the defamatory matters contained in the article were true, the publication was made with "good motives" for "justifiable ends" and hence privileged. And rightfully so. Whether or not a publication is privileged is a question of law for the court. The subjects of the article in which the defamatory matter referred to was included were clearly matters of public concern. The article referred to the present political relations between the government of the United States and the government of the Philippine Islands; to negotiations had between employers *Page 833 and workmen which subsequently upon the trial developed to have been negotiations had to settle a strike between the managers of three sugar plantations on the Island of Maui, represented by the secretary of the Hawaiian Sugar Planters Association, a voluntary association composed of practically all of the sugar plantations in the Territory, including the three plantations involved, and a committee representing four thousand striking Filipinos formerly in the employ of the three plantations; and to a criminal prosecution which was the outgrowth of the strike then pending before the circuit court of the second circuit, the parties defendants to which included members of the committee representing the strikers and the dismissal of which, it was claimed by the latter, was promised by the secretary of the Hawaiian Sugar Planters Association, upon the occasion of which it was charged that the secretary of the Hawaiian Sugar Planters Association had "lied and deceived the workers." The truth of the charge that the secretary of the Hawaiian Sugar Planters Association had lied and deceived the workers became an issue of fact, not as truth in the abstract but as evidence of the absence of malice.
Moreover, the prosecution did not abide the inference of legal malice that the statute afforded. It introduced extrinsic evidence of actual malice or malice in fact in the form of publications appearing in the Hawaii Sentinel relating to the same subject matter published before and after the time of publication of the article, which was the basis of the prosecution. Actual malice or malice in fact is usually referred to as "express malice" to distinguish it from "implied malice" or the malice in law which is presumed to exist from the publication of defamatory matter without justification or excuse. This evidence of actual malice was pertinent only to the defense of justification. "Justifiable ends" neutralize the inference of legal malice. And failing to prove legal malice, it was incumbent upon *Page 834 the prosecution that it prove actual malice. The prosecution introduced this evidence not by way of rebuttal but as a part of its case in chief in anticipation of the defense of truth. To meet the situation as thus presented by the prosecution, the defendants, as a part of their defense, offered evidence of the absence of actual malice.
Hence it was that upon the conclusion of the case the issue of malice was in the following situation: The language included in the article to which I have heretofore referred was libelous of itself and gave rise to the inference of legal malice. The prosecution had also introduced evidence of actual malice. There was evidence offered by the defense tending to show good motives and justifiable ends. This evidence tended to prove absence of legal malice. There was also evidence introduced as a part of the defense tending to prove the truth of the libelous charge. This evidence of truth tended to rebut legal malice. But neither good motives nor justifiable ends nor truth constituted a defense if the defendants were actuated by actual malice. The defendants offered evidence tending to show the absence of actual malice. Upon the Territory rested the burden of proving legal malice. Failing this, there also rested upon it the additional duty of showing actual malice. Against this evidence was evidence of good motives, justifiable ends, truth and absence of actual malice. Obviously there was a sharp conflict between the prosecution and the defense upon the issues of legal and actual malice. Proof beyond a reasonable doubt of the affirmative of the issues of legal and actual malice and every essential element of the offense included in those terms devolved upon the prosecution. Any doubt redounded to the benefit of the accused. It was immaterial whence that doubt arose. Further it was immaterial as to the weight of the evidence that might create a reasonable doubt.
Many of the cases cited by the prosecution refer to the *Page 835 burden of proof being on the defendant when truth is interposed as a defense. This expression, however, means nothing more than that that burden rested upon the defendant when interposing such defense of going forward. Where the prosecution in a case for libel makes out a prima facie case of malicious publication of a defamatory libel, the burden of going forward, usually characterized as the burden of proof, rests upon the defendant. But the burden of proof, strictly speaking, that is, proof of the essential ingredients of the offense, never shifts in a criminal case. It abides with the prosecution throughout the case. It never shifts to the defendant. And where the prosecution makes out a prima facie case and the defendant assumes the burden of proof of justification, the burden of proof of malice still abides with the prosecution and it must prove malice and all the elements involved therein beyond a reasonable doubt. Where the inference of malice is offset by evidence of truth, with good motives and for justifiable ends, the burden remains with the prosecution to prove actual malice and the falsity of the defamatory charges. It was not the duty of the defendants to prove by any degree of evidence, call it preponderance of evidence or what you will, that the defamatory article was true and published with good motives or for justifiable ends or to show that it was not published with actual malice. It was the duty of the prosecution to prove the opposite. And this, beyond a reasonable doubt.
The vice of prosecution's instruction number 3 is obvious. It was prima facie prejudicial. As an instruction on the civil side for damages, it was applicable. But to a criminal prosecution it had no application. It is diametrically opposed to every theory of proof in criminal cases beyond a reasonable doubt. And its effect was to deprive the defendant of a fair trial.
Defendants' requested instruction number 22, though faulty in some respects, substantially sets forth the correct *Page 836 rule. Nor can it be said that any of the instructions given cured the error committed in giving prosecution's requested instruction number 3. Taken in connection with the prosecution's requested instruction number 5, all that was necessary for the prosecution to prove under its requested instruction number 3 was publication. Whereupon, under instruction number 5, the burden of proof of the defense of truth lay with the defendants; and proof by a preponderance of the evidence. Nor did the defendants' instructions numbers 2 and 6, given by agreement, cure the error. To instruct the jury, in the face of instructions numbers 5 and 3, that the burden of proof was not on the accused but rested upon the prosecution from the beginning to the end of the trial and applied to every element to constitute the crime, was inconsistent, conflicting and misleading.
This is a matter of first impression in this jurisdiction. Other jurisdictions, however, have solved the problem against the propriety of an instruction imposing the duty upon the defendant in the case of criminal libel of proving justification by a preponderance of the evidence. In the case of State v. Wait, 44 Kan. 310, 24 P. 354, the defendant was charged with criminal libel. The Kansas bill of rights provided that in all civil or criminal actions for libel the truth might be given in evidence to the jury and if it should appear that the alleged matter was published for justifiable ends the accused party should be acquitted. The statutes of Kansas also contained the provision that in all prosecutions or indictments for libel the truth thereof might be given in evidence to the jury and if it appeared to them that the matter charged as libelous was true and was published with good motives and for justifiable ends, the defendant should be acquitted. That portion of the statute requiring the defendant, in order to make good his defense, to prove that the alleged libelous matter was published with "good motives," had been held to be violative of the *Page 837 constitutional provision pertaining to the same subject matter so that the statute, to the extent that it exceeded the provisions of the Constitution, was not applicable and that proof of truth for justifiable ends was sufficient to enable a defendant to acquittal. Error was assigned to the giving of certain instructions on the defense of justification. In considering the instructions given, the court held: "Where the defendant in a criminal prosecution for libel justifies upon the ground that the alleged libelous matter was and is true, and was published for justifiable ends, he is required to prove, or in some manner to show only its substantial truth, and that it was published for justifiable ends; and he is not required to prove or show the truth of any of the alleged libelous matter except such as would in fact be libelous if not true; and he is not required to prove or show the truth of even that portion of the alleged libelous matter by a preponderance of the evidence, but only by evidence sufficient to create a reasonable doubt in the minds of the jury."
In State v. Bush, 122 Ind. 42, 23 N.E. 677, the trial court charged the jury that if they found that the defendants published the words charged, it was their duty to find them guilty unless they further found that they had proved that the words spoken were true and that the publication was made in good faith. The appellate division held that the defendants "were not required to prove the truth of the publication to entitle them to an acquittal, if from all the evidence before the jury, a reasonable doubt arose in the minds of the jury as to the truth of the publication, the appellees are entitled to the benefit of that doubt, and, therefore, to a verdict of not guilty."
The issue here presented is not unlike that arising in prosecutions for murder where the defense is insanity. In murder, malice is presumed from certain facts and persons are held responsible for the consequences of their acts upon *Page 838 the principle of presumption. The defendant is also presumed sane. But this presumption of sanity only goes to the extent of relieving the prosecution of proving sanity and without any proof on the subject the presumption is conclusive. When proof of insanity, however, is introduced, inasmuch as malice could not exist in the mind of an insane person, evidence establishing a reasonable doubt as to the sanity of the defendant in effect establishes a reasonable doubt as to the existence of malice. In the case of Davis v. United States, 160 U.S. 469, the trial court instructed the jury: "Such insanity, if proved to your reasonable satisfaction to have existed at the time of the commission of the act — that is the test — at the time of its commission, is in the law an excuse for it. * * * The law presumes every person who has reached the years of discretion to be of sane mind, and this presumption continues until the contrary is shown. So that when, as in this case, insanity is interposed as a defence, the fact of the existence of such insanity at the time of the commission of the offence charged, must be established by the evidence to the reasonable satisfaction of a jury, and the burden of proof of the insanity rests with the defendant." (Italics provided.) The trial court also gave the usual instructions upon reasonable doubt and burden of proof. Upon review of these instructions, the supreme court said: "The plea of not guilty is unlike a special plea in a civil action, which, admitting the case averred, seeks to establish substantive ground of defence by a preponderance of evidence. It is not in confession and avoidance, for it is a plea that controverts the existence of every fact essential to constitute the crime charged. Upon that plea the accused may stand, shielded by the presumption of his innocence, until it appears that he is guilty; and his guilt cannot in the very nature of things be regarded as proof, if the jury entertain a reasonable doubt from all the evidence whether he was legally capable of committing crime. * * * The law *Page 839 presumes that every one charged with crime is sane, and thus supplies in the first instance the required proof of capacity to commit crime. It authorizes the jury to assume at the outset that the accused is criminally responsible for his acts. But that is not a conclusive presumption, which the law upon grounds of public policy forbids to be overthrown or impaired by opposing proof. It is a disputable or, as it is often designated, a rebuttable presumption resulting from the connection ordinarily existing between certain facts. * * * In a certain sense it may be true that where the defence is insanity, and where the case made by the prosecution discloses nothing whatever in excuse or extenuation of the crime charged, the accused is bound to produce some evidence that will impair or weaken the force of the legal presumption in favor of sanity. But to hold that such presumption must absolutely control the jury until it is overthrown or impaired by evidence sufficient to establish the fact of insanity beyond all reasonable doubt or to the reasonable satisfaction of the jury, is in effect to require him to establish his innocence, by proving that he is not guilty of the crime charged. * * * Strictly speaking, the burden of proof, as those words are understood in criminal law, is never upon the accused to establish his innocence or to disprove the facts necessary to establish the crime for which he is indicted. It is on the prosecution from the beginning to the end of the trial and applies to every element necessary to constitute the crime. Giving to the prosecution, where the defence is insanity, the benefit in the way of proof of the presumption in favor of sanity, the vital question from the time a plea of not guilty is entered until the return of the verdict, is whether upon all the evidence, by whatever side adduced, guilt is established beyond reasonable doubt. * * * How then upon principle * * * can a verdict of guilty be properly returned, if the jury entertain a reasonable doubt as to the existence of a fact which is essential to guilt, *Page 840 namely, the capacity in law of the accused to commit that crime?"
In State v. Greenville Pub. Co., 102 S.E. 318, the court said: "In order to a conviction of libel by reason of a defamatory publication of this character, it must be shown that it is both false and malicious, and our decisions on the subject are to the effect further that the `falsity of the charge is not of itself sufficient to establish malice, there being a presumption that such a publication is made in good faith.' True, the malice referred to is not necessarily that of personal ill will or malevolence; it may be said to exist when it is shown that the publication is made from some ulterior motive, and it may be inferred where a defamatory statement is knowingly false or made without any fair or reasonable grounds to believe in its truth, or, at times, from the character and circumstances of the publication itself, but with the exception, probably, that a man's general moral character is presumed to be good until the contrary is shown; this being, as stated, a case of qualified privilege, the burden is on the state to show, and, in a criminal prosecution, to show beyond a reasonable doubt, that the defamatory charge is both false and malicious." In Graham v. State, 7 Ga. App. 407, 66 S.E. 1038, the syllabus opinion is as follows: "The prosecutor and the defendant were members of the same secret fraternal benevolent order, called `The Supreme Circle.' The defendant made a written accusation against the prosecutor, charging him with aiding and abetting a felonious assault made upon the person of a brother member. The accusation was made within the order, in strict accordance with the rules, and apparently for the sole purpose of having the charges investigated by the members of the lodge, under its rules. Held: (1) The written accusation was one of qualified privilege. (2) The burden was on the prosecutor to show that the accusation was both false *Page 841 in fact and malicious in purpose." In the case of Kelly v. State, 195 S.W. (Tex. Cr. App.) 853, 854, the court held: "A paragraph of the court's charge submitting the issue to the jury is as follows: `If you believe from the evidence that Earnest Kelly, in Hunt county, Texas, on or about the 1st day of December, 1916, did orally, falsely, maliciously, and wantonly impute a want of chastity to Mrs. Will Tingle, you will find the defendant guilty; and if you do not so believe from the evidence, you will return a verdict of not guilty.' This is criticised as susceptible of the construction that it required the appellant to prove his innocence. On another trial the court will doubtless frame his charge so as to avoid this criticism, and to clearly place upon the state the burden of proof throughout the case to prove the appellant's guilt beyond a reasonable doubt."
Defendants' instructions 2 and 3, which were given by agreement, are stock instructions upon burden of proof. Prosecution's requested instruction number 5 refers primarily to malice. The court had instructed the jury elsewhere that under section 6054 malice was presumed. Although the court had instructed the jury that the article was libelous per se, it included in the instruction the statutory definition of libel. Taking the prosecution's instructions as a whole, the only issue of fact presented to the jury was that of publication. But prosecution's instruction number 3 singled out justification and made it the basis of a special instruction upon the weight of the evidence necessary for the defendants to sustain the defense of justification. And, taken with prosecution's instruction number 19, it in effect charged the jury that unless they believed that the person defamed had lied and deceived workers as contained in the newspaper article of September 9, 1937 (the article made the basis of the prosecution), by a preponderance of the evidence there was no privilege or freedom of the press that would condone the publication of that statement. *Page 842 The obvious effect of these instructions was to impress upon the minds of the jury that before they could acquit the defendants, it was incumbent upon them to prove their innocence by a preponderance of the evidence.
While the jury was correctly instructed upon the general rule of burden of proof, it was not told to disregard the objectionable instruction charging it that it was incumbent upon the defendants to prove the defense of justification by a preponderance of the evidence. Prosecution's instruction number 3 was clearly prejudicial. "An erroneous instruction, clearly prejudicial, cannot be cured by another instruction which correctly states the law, but does not call the attention of the jury to the erroneous instruction." Ter. v. Kaeha, 24 Haw. 467, 471. (See also Territory v. Richardson, 17 Haw. 231, 237.)
To briefly summarize: Where, as here, the jury is correctly instructed generally upon the burden of proof obtaining in criminal cases but is also instructed by way of qualification of an instruction upon the degree of proof devolving upon the prosecution to prove publication that "once such publication is proved to your satisfaction beyond a reasonable doubt, the burden is thereafter upon such defendant or defendants to prove to your satisfaction, by a preponderance of the evidence that the charges [here follows the libelous matter] at the time of its publication, true and, further, that they were published with good motives and for justifiable ends" such instruction is reversible error. (Prosecution's Requested Instruction No. 3.)
In every criminal prosecution the defendant is presumed to be innocent of the crime charged until the contrary is shown. To overcome this presumption of innocence and to establish guilt, every element necessary to constitute the crime must be proved beyond a reasonable doubt. Where, in a prosecution for publishing a libel, the defendant introduces evidence tending to prove the truth of the defamation *Page 843 and that it was published with good motives and for justifiable ends, it is incumbent upon the prosecution to prove beyond all reasonable doubt the falsity of the defamatory matter and that it was not published with good motives and for justifiable ends. Conversely if, from all the evidence before the jury, a reasonable doubt arises in the minds of the jury as to the truth of the publication and that it was published with good motives and for justifiable ends, the defendant is entitled to the benefit of that doubt and to an acquittal.
Concluding as I do that the giving of prosecution's requested instruction number 3 was reversible error, it becomes further necessary to express my views upon the following contentions of the plaintiffs in error: 1. that the article complained of was not libelous; 2. that the alleged libelous matter is fair comment upon a matter of public interest; and 3. that the provisions of chapter 196, sections 6050 to 6059, both inclusive, hereinafter referred to as the "libel law," are unconstitutional and void upon the several grounds urged. None of the other errors assigned except those herein expressly referred to are passed upon.
1. First, as to the claim that the article is not libelous. It is quoted in full in the margin as published, omitting the name of the person defamed.4 *Page 844
The offense of publishing a libel is defined as follows: "A libel is a publication in writing, print, or by a picture, statute, sign, or a representation, other than by words merely spoken, which directly tends to injure the fame, reputation or good name of another person, and bring him into disgrace, abhorrence, odium, hatred, contempt or ridicule, or to cause him to be excluded from society." R.L. 1935, § 6050. Section 6052 is quoted supra. It should be observed that in order to constitute the offense of publishing a libel the writing, print, etc., need not in effect injure the general reputation or good name of another or bring him into disgrace, abhorrence, etc. It is sufficient if it directly tends to injure the general reputation or good name of another and to bring him into disgrace, abhorrence, etc. Nor is the Territory required to prove, in order to prove the offense condemned by the statute, that the publication tends to injure the general reputation or good name of the person and to bring him into disgrace, abhorrence, etc. Where the defamatory article on its face discloses that it tends to injure the general reputation, etc., of a particular *Page 845 person and bring him into disgrace, abhorrence, etc., proof of a libel is complete. The statutory definition incorporates into the body of the laws of the Territory a declaration of that which was a misdemeanor at common law. It may be said to be declaratory of the common law. The reason why the publication of a libel is condemned and made a criminal offense is its tendency to provoke a breach of the peace. In the case of Commonwealth v. Clap, 4 Mass. 163, 3 Am. Dec. 212, the court said: "The cause why libellous publications are offences against the state, is their direct tendency to a breach of the public peace, by provoking the parties injured, and their friends and families, to acts of revenge, which it would not be easy to restrain, were offences of this kind not severely punished. And every day's experience will justify the law in attributing to libels that tendency which renders the publication of them an offence against the state." (See also Newell, Slander and Libel [4th ed.], § 809, p. 917, § 807, p. 916, § 828, p. 934, § 830, p. 935, and cases cited; 3 Col. L. Rev. 546; 18 The Laws of England [Halsbury], T. Libel, p. 605; Coleman v. MacLennan, 78 Kan. 711, 98 P. 281; State v. Levand, 37 Wyo. 372, 262 P. 24; State v. Gardner, 112 Conn. 121, 151 A. 349.) *Page 846 Civil and criminal prosecutions are obviously different in their purpose and end. In the former an individual invokes a remedy for the invasion of a personal right; in a criminal prosecution the public "seeks to restrain and prohibit acts, which would destroy the peace and harmony of society." Commonwealth v. Snelling, 15 Pick. (Mass.) 337. Nor in a criminal prosecution for the publication of a libel is it considered whether the publication be true or false "because a man may maliciously publish the truth against another, with the intent to defame his character, and if the publication be true, the tendency of it to inflame the passions, and to excite revenge, is not diminished, but may sometimes be strengthened." Commonwealth v. Clap, supra. (Commonwealth v. Blanding, 3 Pick. [Mass.] 304, 15 Am. Dec. 214, 217; State v. Burnham, 9 N.H. 34, 31 Am. Dec. 217, 220; Newell, Slander and Libel [4th ed.], § 700, p. 768.) Hence it is that falsity of the alleged libelous charge need not be alleged in an indictment or information. (Robinson v. State, 108 Md. 644, 71 A. 433; State v. Fosburgh, 32 S.D. 370, 39 Am. Eng. Ann. Cas. [1916A] 424; State v. Lomack, 130 Iowa 79, 106 N.W. 386.)
Where a defamatory article is libelous, truth in the first instance is immaterial and upon proof of a malicious publication there is a prima facie case of violation of the statute. It is only when the defendant interposes the defense of justification that truth with good motives and for justifiable ends comes in issue and its proof is subject to the general rules applicable to libel.
It is well-settled that "to impute to another in libelous form conduct which tends to lower the other's reputation for veracity or honesty, irrespective of whether such conduct constitutes a criminal offense and irrespective of whether it tends to affect the trade, business, or profession" is libelous per se. (Restatement, Law, T. Torts, § 569 [comm. g], p. 169. See also Commonwealth v. Wright, 1 *Page 847 Cush. [Mass.] 46; Richardson v. State, 66 Md. 205, 7 A. 43; State v. Mayberry, 33 Kan. 441, 6 P. 553; Commonwealth v. Clap, supra; Colvard v. Black, 110 Ga. 642, 36 S.E. 80; Paxton v. Woodward, 31 Mont. 195, 78 P. 215; Johnson v. Commonwealth, 10 Sad. [Pa.] 514; Farley v. Publishing Co., 113 Mo. App. 216, 87 S.W. 565; Commonwealth v. Damon, 136 Mass. 441.) Whatever may be characterized civilly as libelous per se is criminally libelous within the definition of criminal libel defined by section 6050.
The imputation of falsehood and deceit which runs through the entire article is clearly libelous. The language employed is plain and unambiguous. The import of the term employed is clear and unequivocal. No innuendos were required to explain their meaning. The allegations of extrinsic facts were unnecessary for the purpose of showing the application to the party libeled of the defamatory matter on which the information was founded, further than to state generally that the same was published concerning him. The tendency of the language referred to tended to subject the person condemned to the ignominy characterizing the offense (§ 6050) and in the absence of justification was sufficient without more to sustain a verdict of guilty of the offense of publishing a libel.
2. As heretofore stated the article complained of had reference to matters of public interest and concern. As such it was a legitimate subject of fair and reasonable comment. (Newell, Slander and Libel [4th ed.], § 477, p. 516, § 481, p. 520; Gott v. Pulsifer, 122 Mass. 235, 238; Flanagan v. Nicholson Pub. Co., 137 La. 587, 68 So. 964, 968, and cases cited; Commonwealth v. Pratt, 208 Mass. 553, 95 N.E. 105, 106; Conroy v. Pittsburg Times, 139 Pa. 334, 337; Scripps v. Foster, 41 Mich. 742, 3 N.W. 216; Peoples v. Detroit Post Tribune, 54 Mich. 457, 20 N.W. 528.) Comment may descend to ridicule, sarcasm and even invective, without sacrifice of the immunity of the privilege. (Gott v. Pulsifer, *Page 848 supra; Hubbard v. Allyn, 200 Mass. 166, 170, 86 N.E. 356, 358.) Criticism of the truth may be severe, harsh, bitter or sarcastic; even caustic if the facts warrant it.5 But the right of discussing matters of public interest does not extend to the making of false statements of fact. (Newell, Slander and Libel [4th ed.], § 483, p. 521; Ferguson v. Houston Press Co., 1 S.W. [2d] [Tex. Civ. App.] 387; Hubbard v. Allyn, supra; Dow v. Long, 190 Mass. 138, 141, 76 N.E. 667.) Freedom of discussion rather than of statement is the criterion. The right to comment does not include the right to make false statements. Nothing short of the truth will suffice. As said in the case of Burt v. Advertising Newspaper Co., 154 Mass. 238, 28 N.E. 1, 4, "We agree with the defendant, that the subject was of public interest, and that in connection with the administration of the custom-house the defendant would have a right to make fair comments on the conduct of private persons affecting that administration in the way alleged. But there is an important distinction to be noticed between the so called privilege of fair criticism upon matters of public interest, and the privilege existing in the case, for instance, of answers to inquiries about the character of a servant. In the latter case a bona fide statement, not in excess of the occasion is privileged, although it turns out to be false. In the former, what is privileged, if that is the proper term, is criticism, not statement, and however it might be if a person merely quoted or referred to a statement as made by others, and gave it no new sanction, if he takes upon himself in his own person to allege facts otherwise libellous, he will not be privileged if those facts are not true." *Page 849
The gist of the libelous charges in the instant case is that one of the terms of the agreement under which the strikers returned to work was a promise made by the prosecutor as the agent of the employers that a pending criminal case in which strikers were defendants would be discontinued but that despite such promise the prosecution had not been discontinued, on the contrary, had proceeded to conclusions at the instance of the attorney employed by the Hawaiian Sugar Planters Association, of which the employers were members; and thus the prosecutor had lied and deceived the workers. This is a statement of fact and not of criticism upon facts. And if the statement were untrue, even if the occasion of its publication were privileged, justification would not exist. The justification however need be no broader than the libelous charges. This is the general rule. "Proof of the substance of the defamatory charge is a justification and it is not necessary that every immaterial portion of the charge be proved true." 37 C.J., T. Libel and Slander, § 508, p. 87.6 The provisions of section 6055 are confirmatory of the general rule. Were all references to falsehood and deceit on the part of the prosecutor withdrawn from the article, the article would not be libelous. It is the truth of the "libelous charges" contained in the article and not the truth of immaterial nonlibelous matters that, under the statute (§ 6050), constitutes justification. If there is evidence, more than a mere scintilla, tending to prove the substance of the "libelous charges" the defense of justification has been sustained.
Moreover truth is a question of fact and not of law. So long as there is evidence, more than a mere scintilla, tending *Page 850 to show the truth of the "libelous charges" its weight and credibility is for the jury and not a question of law for the court. It is for the trier of the facts to decide whether the truth of the defamatory matter is established by the evidence.7
In this case there was evidence, more than a mere scintilla, tending to prove the truth of the "libelous charges" contained in the article. Whether or not that evidence was true or false is not for this court to say.
3. Little need be said in defense of the constitutionality of the territorial libel law. Defendants claim that the law is unconstitutional for the reason that it fails to commit to the jury the determination of the law as well as the facts. Many of the State constitutions contain such a provision in their bill of rights. Many State statutes so provide. The Croswell case was the motive of the adoption of a constitutional provision to that effect by the State of New York. But no case has been called to my attention and I know of none that holds that the failure to so provide violates the guaranty of freedom of the press of the first amendment or those of the fifth or fourteenth amendments of the Constitution. Neither the right of trial by jury nor due process is violated by the power reserved to the court to instruct the jury upon the law of the case. The same may be said of the claim that the libel law is unconstitutional for the reason that under the provisions of section 6055, where truth is a defense, there is committed to the court as a question of law *Page 851 and not to the jury as a question of law and fact, the issue whether the alleged defamatory matter is published with good motives and for justifiable ends.
Nor does the failure of the libel law to impose upon the prosecution the duty of proving the falsity of the alleged defamatory matter violate the guaranties referred to. As heretofore pointed out, falsity of the defamatory matter is not an element of the statutory offense of publishing a libel and need not be proved except upon the introduction by the defendant of evidence of truth in support of the defense of justification. It was not at common law. And I see nothing in the guaranty of freedom of the press inhibiting the legislative adoption of the common-law offense of publishing a libel. Massachusetts did so and the supreme court of that State held that it was not violative of the State guaranty of freedom of the press. (See Commonwealth v. Blanding, supra, cited with approval in Near v. Minnesota, 283 U.S. 697, 714.) The same may be said of the provisions of the statute in respect to truth as a defense. The libel law does not impose upon the defendant the duty of proving the truth of the alleged defamatory matter. On the contrary, where truth is interposed as a defense, the burden is upon the prosecution to prove its falsity. Nor does the law impose upon the defendant by the provisions of section 6054 the burden of rebutting malice. The statute imposes no duty upon the defendant of rebutting anything. The section is merely a statutory rule of evidence that ordinarily obtains where the unlawful act imputes an unlawful intent in the absence of justification or lawful excuse. Where an article is libelous, malice is a reasonable inference arising from publication. The statutory rule is but confirmatory of the general rule applicable to libel in the absence of statute. (Wharton's Crim. Ev. [11th ed.], § 353, pp. 534, 535; Commonwealth v. Snelling, supra.) The rule of evidence *Page 852 in that regard is based upon reason. The libel law contains no limitation upon the general rule that burden of proving malice is upon the prosecution. Nor does the libel law as a whole impose any unreasonable restrictions upon the right of a free press.
Conceding freedom of the press to be a natural and inherent right, it is not, however, absolute and is subject to restriction and limitation. (Schenck v. United States, 249 U.S. 47; Debs v. United States, 249 U.S. 211; Abrams v. United States, 250 U.S. 616; Gilbert v. Minnesota, 254 U.S. 325, 332.)
Libel statutes are passed in the exercise of the recognized police power of the State for the peace, morals and good order of society. "But it is recognized that punishment for the abuse of the liberty accorded to the press is essential to the protection of the public, and that the common law rules that subject the libeler to responsibility for the public offense, as well as for the private injury, are not abolished by the protection extended in our constitutions." Near v. Minnesota, supra, p. 715. Liberty of the press is not an absolute right and the State may punish its abuse. (Near v. Minnesota, supra; Stromberg v. California, 283 U.S. 359, 368.) Included in the power to impose reasonable restrictions upon free speech is the power to limit truth as a defense. The limitations upon truth as a defense imposed by section 6055 are in effect substantive provisions qualifying the offenses defined by sections 6050, 6052 and 6053 and limiting the effect of the inference of law created by section 6054. There is no constitutional right to publish a fact merely because it is the truth. Hence it cannot be said that under the provisions of section 6055 the truth is unreasonably limited and restricted to those occasions only where the defamatory matter complained of is published with good motives and for justifiable ends. *Page 853
Finally as to the objection that the terms "good motives" and "justifiable ends" contained in section 6055 are vague and indefinite, as a result of which defendant in a prosecution for libel cannot be advised of the cause and nature of the accusation against him. Sufficient has been said to show the fallacy of this contention. These terms were incorporated in our libel law similarly as they have been adopted elsewhere with a full appreciation of their meaning and connotation. As said by Mr. Chief Justice Hughes in the case of Connally v. General Const. Co., 269 U.S. 385, 391: "[They] are well enough known to enable those within their reach to correctly apply them." (See also Hygrade Provision Co. v. Sherman, 266 U.S. 497, 502; Omaechevarria v. Idaho, 246 U.S. 343, 348.)
In conclusion let me say that the scope of the statutory defense of justification permitted by section 6055 is as broad as the concepts of the term "freedom of the press" itself. Mr. Justice Kent defined "liberty of the press" as follows: "The liberty of the press consists in the right to publish, with impunity, truth, with good motives, and justifiable ends, whether it respects government, magistracy or individuals." People v. Croswell, supra. Mr. Justice Story defined "liberty of the press" thus: "It is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends. And with this reasonable limitation it is not only right in itself, but it is an inestimable privilege in a free government. Without such a limitation, it might become the scourge of the republic, first denouncing the principles of liberty, and then, by rendering the most virtuous patriots odious through the terrors of the press, introducing despotism in its worst form." Story's Commentaries, Constitution, § 993, p. 704. "Nay; it has farther been held, that the truth of the facts is not alone *Page 854 sufficient to justify the publication, unless it is done from good motives, and for justifiable purposes, or, in other words, upon an occasion, (as upon the canvass of candidates for public office,) when public duty, or private right requires it." Story's Commentaries, Constitution, § 996, p. 707. Story is cited with approval in the dissenting opinion of Mr. Justice Butler in Near v. Minnesota, supra, p. 733.
Construed in its broadest sense "freedom of the press" consists of no more than "the right, without any previous license or censorship, to publish the truth with good motives and for justifiable ends." 11 Am. Jur., T. Const. Law, § 320, p. 1111, citing People v. Croswell, 3 Johns. Cas. 337-393; Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 549, 555; Ex Parte Mekel, 87 Tex. Cr. Rep. 120, 220 S.W. 81, 82.
Consistently with the view herein expressed the judgments and sentence entered in both cases should be vacated and set aside and the causes remanded for a new trial.
1 Name of prosecutor deleted.
2 (Rev. Code Ariz. [1928], § 4618; Const. Calif., art. 1, § 9, Deering's Penal Code of Calif., § 251; Code D.C. [1929], T. 6, § 40; Idaho Compiled Stats. [1919], T. 59, ch. 302, § 8256; Const. Ill. [1870], art. II, § 4, Ill. Rev. Stats., c. 38, § 400; Const. Iowa [1931], art. 1, § 7; Gen. Stats. Kan. [1915], § 3769; Const. La. [1920], § 989, p. 491; 2 Mass. Stats. [1932], ch. 278, § 8, p. 3255; Const. Mich. [1908], art. II, § 18; 2 Mason's Minn. Stats. [1927], ch. 92, § 9904; Hemingway's Ann. Miss. Code [1917], § 1008, p. 720; 4 Rev. Codes Mont. [1921], ch. 22, § 10992, p. 88; Const. Neb. [1920], art. 1, § 5; Const. Nev., art. 1, § 9, 2 Rev. Laws Nev. [1912], § 6428; Const. N.J. [1884], art. 1, § 5; Const. N.M. [1912], N.M. Stats. [1929], art. II, § 17; Const. N.Y., art. 1, § 8, Cahill's Cons. L. of N.Y.; Compiled Laws Ann. N.D. [1913], § 9552; Const. Okla., art. II, § 22, Compiled Stats. [1921], § 1803; Lord's Oregon Laws [1909], § 2387; Comp. Laws S.D. [1929], § 4085; Rem. Stat. Wash. [1922], § 2425; Const. W. Va. [1872], art. III, § 8; Const. Wis., art. I, § 3.)
3 (Near v. Minnesota, 283 U.S. 697; State v. Chase, 94 Fla. 1071, 114 So. 856; Eldridge v. State, 27 Fla. 162, 9 So. 448; People v. Strauch, 247 Ill. 220, 93 N.E. 126; La Monte v. Kent, 163 Ill. App. 1; People v. Spielman, 318 Ill. 482, 149 N.E. 466; People v. Fuller, 238 Ill. 116, 87 N.E. 336; State v. Conable, 81 Iowa 60, 46 N.W. 759; Coleman v. MacLennan, 78 Kan. 711, 98 P. 281; State v. Brady, 44 Kan. 435, 24 P. 948; Castle v. Houston, 19 Kan. 417; State v. Verry, 36 Kan. 416, 13 P. 838; Perret v. New Orleans Times Newspaper, 33 La. Ann. 170; Commonwealth v. Clap, 4 Mass. 163, 3 Am. Dec. 212; Commonwealth v. Snelling, 32 Mass. 337; Commonwealth v. Blanding, 3 Pick. [Mass.] 304; Commonwealth v. Bonner, 9 Metcalf's [50 Mass.] 410; State v. Mays, 57 Wash. 540, 107 P. 363; State v. Pioneer Press Co., 100 Minn. 173, 110 N.W. 867; Oakes v. State, 98 Miss. 80, 54 So. 79; Wirtz v. Sprecher, 82 Neb. 834; 118 N.W. 1071; State v. Burnham, 9 N.H. 34, 31 Am. Dec. 217; Benton v. State, 59 N.J.L. 551, 36 A. 1041; Drake v. State, 53 N.J.L. [24 Vroom] 23, 20 A. 747; People v. Croswell, 3 Johns. Cas. [N.Y.] 337; People v. Simons, 1 Wheeler Crim. Cas. [N.Y.] 339; State v. Mason, 26 Ore. 273, 38 P. 130; State v. Putnam, 53 Ore. 266, 100 P. 2; Respublica v. Dennie, 4 Yeates' [Pa.] 266, 2 Am. Dec. 402; United States v. Bustos, 13 Philip. 690; Saunders v. Baxter, 53 Tenn. [6 Heisk.] 302; Sweeney v. Baker, 134 W. Va. 158, 31 Am. Ref. 757.)
4 "Gen. * * * Fans Far East Fires.
"Fascist Hawaii defies the President of The United States. It slaps Secretary of State Cordell Hull in the face. It laughs in scorn and derision at Secretary of War Harry Woodring. Deliberately, maliciously, in the face of fair warning and despite the pleas of our country's leaders, it acts to win for America the hatred of a nation whose good will is vital to our nation now. That nation is the new Philippine Nation, eighteen millions of people whose friendship today is essential to us, and whose good will Washington is striving to hold. Fascist Hawaii is making the name American a hissing in the Philippines, aiding there the aims of propagandists of Asian imperialism. By that our fascists have brought new peril into the American situation in the Far East. What is Washington going to do about it? Will it step in to save American prestige in the Far East now, to save the honor of the United States Army, as it once stepped into Hawaii to defend the good name of the navy? For the crux of the peril of today is that the man who brought about the new danger is none other than a once-honored chief of the United States Army. This man * * * for money, shed his country's uniform to don a lackey's livery. And as a lackey for the HSPA he has trafficked with the honor, credit and reputation of the United States Army to stir up international strife that his employers might profit. A series of events reveals the perfidy of the * * * strategy and betrayal of American aims. Two months ago President Roosevelt, vetoing the bill of Delegate Sam King, HSPA stooge, put in to ban entry of Filipinos to Hawaii, declared the bill menaced American weal in the Philippines. Behind the President stood the State Department, with all its knowledge of our Far Eastern needs. Behind him stood, also, the War Department with all its keen interest and experience in Philippine matters. `Hands off the Filipinos,' was Mr. Roosevelt's dictum. But * * * vetoed the president. `To hell with the Filipinos and Philippine good will,' and he said it with action. * * * it was who, trading on his military title and prestige, made peace with the 4,500 Filipino workers on Maui two months ago. Promised by him, say Filipino leaders, was end of HSPA war upon workers, and of court persecution. Now, with open charges, undenied, that * * * lied and deceived workers who trusted to the honor of the U.S. Army, Maui is again on the verge of ferment. Instead of peace, * * * swings the HSPA sword, hurls HSPA mercenaries into the court to convict the Filipino leaders. And 60,000 Filipino workers cry out, send word to Manila, and all over their homeland, that America is a land of persecution, ruled by unprincipled and revengeful men. Over all their homeland goes word that American generals are liars and deceivers, schemers to oppress and imprison Filipinos who are innocent. How can America answer? How can it deny? How can it meet the whisper of the Pan-Asian advocate? The schemes of anti-American agitators and propagandists? America, by act of our kings of fascism intent on their works of greed and power, becomes a hateful thing to millions, and thereby the works of our President and our State, Navy and War Departments are nullified. What is Washington going to do about it? The Maui case has been a disgrace to the people of Hawaii. It has been a travesty on American justice, for in it public power has been seized and used ruthlessly for private terrorism and revenge. It has been a shame to the Roosevelt administration through connivance for wrong by the highest governmental powers in the Territory, the governor and the attorney general of Hawaii. It has been a signal to the Filipino people that their sons here will be victimized, abused, robbed of their rights and liberties under pretense of law and order. America's waning prestige in the Far East has been put on the auction block for profit by HSPA's lackey general. What is Washington going to do about it?"
5 (36 C.J., T. Libel and Slander, § 287, p. 1282; Oklahoma Publishing Co. v. Kendall, 96 Okla. 194, 221 P. 762, 767; Cherry v. Des Moines Leader, 114 Iowa 298, 86 N.W. 323, 325, 89 A.S.R. 365, 54 L.R.A. 855; Addington v. Times Pub. Co., 138 La. 731, 70 So. 784, 786; Ruhland v. Cole, 143 Wis. 367, 127 N.W. 959, 961.)
6 (Stow v. Converse, 4 Conn. 17, 31; Blodgett v. Des Moines Daily News Co., 113 N.W. [Iowa] 821, 822; Golderman v. Stearns, 7 Gray's 181, 182; Reynolds v. Publishers Geo. Knapp Co., 155 Mo. App. 612, 617, and cases cited, 135 S.W. 103; Beecher v. Press Pub. Co., 69 N.Y.S. 895, 898; Heilman v. Shanklin, 60 Ind. 424, 441; Watson v. Herald-Dispatch Co., 221 Ill. App. 557, 560.)
7 (37 C.J., T. Libel and Slander, § 552, p. 106; Brothers v. Brothers, 208 Ala. 258, 94 So. 175, 177; Dowie v. Priddle, 216 Ill. 553, 75 N.E. 243, 3 Am. Eng. Cas. Ann. 526; White v. Bourquin, 204 Ill. App. 83, 94; Inland Printer Co. v. Economical Half Tone Supply Co., 99 Ill. App. 8, 17; Compton v. Wilkins, 164 Ky. 634, 176 S.W. 36, 38; Warner v. Fuller, 245 Mass. 520, 139 N.E. 811, 815; Van Lonkhuyzen v. Daily News Co., 195 Mich. 283, 161 N.W. 979, 982, L.R.A. [1917D] 855; Minter v. Bradstreet Co., 174 Mo. 444, 73 S.W. 668, 680; Russell v. Brooklyn Daily Eagle, 153 N.Y.S. 450, 452; Remson v. Bryant, 62 N.Y.S. 434, 438, 439; Willetts v. Scudder, 72 Ore. 535, 144 P. 87, 90; Ecuyer v. New York Life Ins. Co., 101 Wash. 247, 172 P. 359, 362, L.R.A. [1918E] 536; Wilson v. Sun Publishing Co., 85 Wash. 503, 148 P. 774, 779; Quinn v. Review Publishing Co., 55 Wash. 69, 104 P. 181, 183.)