DISSENTING OPINION OP
GALBRAITH, J.In the consideration of this case I have not been able to close my eyes to the fact, so patent on the record, that the prosecution primarily-gx*ew out of and is pressed by a feud between two rival Chinese Societies. I am not willing to dignify “the English as she is wrote” by American Chinese by holding that the publication of the ambiguous, symbolical and ungrammatical nonsense set out in the complaint constitutes a crime under the laws of this Territory and to- affirm a sentence of thirty days at hard labor against the defendant for publishing the same.
The record bristles with evidence pointing to the conclusion that the strong arm of tire criminal law was not invoked in this instance to redress a Avrong against society, to restrain the enemy of private morals or private virtue, but to humiliate, harass and oppress a personal enemy. Under such circumstances, it seems to me, that an appellate court-, at least, should scrutinize the record with extreme care, and ought to resolve every reasonable doubt in favor of the liberty of the subject. ,
The alleged libel xias xvriiten by a room boy at a, local hotel and given to his friend, the defendant, Avho is manager of a Chinese newspaper, the organ of the Bow Wong Society. The article was-published in Chinese characters at advertising rates. The prosecuting vritness is a member of the Consul’s party.
To constitute the offense of criminal libel under the statute of this Territory the publication in writing, print or character, *625etc., must, if false, “directly tend to injure the fame, reputation and good name of another person, and to bring him into disgrace, abhorence, odium, hatred, contempt or ridicule, or to cause him to be excluded from society.” Before the thing written or printed and published can “directly tend to injure the fame,” etc., of any person it must convey a definite meaning and be capable of being understood by those versed in the writing, signs or characters in which it is given. It is scarcely necessary to. cite authorities to establish the propostoin that if the writing, sign or character in which the alleged libellous matter cannot be predicated upon it. It must speak in one language and convey one and the same idea to the initiated in the language, employed, ployed.
Applying this test to the publication in question the charge of criminal libel cannot be sustained. The Chinese characters used in the publication did not have a definite and understood meaning even to experts in the language. Eive witnesses for the prosecution testified that they were competent Chinese and English scholars and could correctly translate from Chinese into English and no two of these translations are- the same. Pour of these witnesses translated the heading of the publication and each makes it read different from the other. See Yet Kai says that it should be translated, “Things are not just.” Lin Chin Chow says: “Seeing things not fair.” Li Cheung (the official court interpreter) says “Taking part of the injured.” While Poon Quai Leong, the prosecuting witness, says, “'Seeing matters are not just.” The translations of the body of the article is given by five witnesses and no two. of them give the same translation or exactly agree with that given in the complaint. This difference is clearly illustrated in the several translations of the only part of the publication that is alleged to be libellous per seClio. Ho, the first witness who qualifies as an expert translator, gives it as follows:
“I do not blame them for having argument with him and stating he does his work dishonestly and accusing people of certain things. I do not blame Wong for having argued about this *626matter stating that he has no mercy or pity, man without conscience.”
The second witness See Yet Kai gives it thus:
“Three men by the name of Wong, Fong and Ng published in the paper some time ago that he has no conscience to force people by misrepresentation. The thing was not SO' and the man was forced to say it was so, and so this Wong, ICwong and Ng has known him before, and I hope, that all friends will look out for to enter his trap, so T tell you all about this.”
While Liu Chin Chow, swear’s that it should be translated thus:
“In regard to this man’s conduct I do not blame Wong, Fong and Ng in writing argument, stating that he is one of those who have no conscience and one of those who extorts by force, and falsely accuses people. That is can be seen that Wong, Fong and Ng had experience to forsee this. I hope friends who liad claims be careful and keep this in mind and not to enter his trap.” .
The fourth witness Li Cheung translates it in this way:
“In regard to this man’s character I do. not blame Wong, Fong and Ng for stating in their article heretofore that he is one of those, who has no conscientious heart and of the heart who blackmail.”
And the prosecuting witness makes it read in English thus:
“But as regards this man’s character or conduct I do not blame Wong, Fong and Ng for stating in their written article that he is one of those who has unconscientious hearts and one of those who blackmails people by false representations. From this it can he seen that brothers AYong, Fong and Ng can clearly forsee this. I hope that friends who have claims will bear in mind and be on tbe alert not to enter his trap.”
Not one of these several translations agrees in every particular with that set out in the complaint and each one varies more nr less from the others. From these facts the conclusion is inevitable that to each of the witnesses who read the publication if ©poke a different story. How can any Court find, as a matter ief law, that characters capable of so many different translations *627and whose meaning is so uncertain can be the subject of criminal libel? I do not believe that any court ought soi to find.
If the Circuit Judge overruled the motion for non-suit made at the close of the prosecution’s evidence on the ground that that was not a proper motion in a criminal case, I am inclined to agree with him and concur with the majority in overruing the exception taken thereto. However, the exception to the overruling the motion for a new trial ought to be sustained, the verdict set aside and the defendant discharged.