The same situation developed here as in the case of Ter. v.Crowley, 34 Haw. 774.
As a comment upon the acts of a public officer seeking re-election, the publication was qualifiedly privileged. Where a publication is qualifiedly privileged good motives and justifiable ends are presumed, providing the statements of fact contained therein are true. If the statements of fact contained in the publication are true the *Page 105 defense permitted by R.L.H. 1935, § 6055, is complete. This is so because the facts showing malice under R.L.H. 1935, § 6054, are not present.
The court charged the jury in effect that the burden of proof rested upon the defendant to show by a preponderance of the evidence the absence of facts showing malice under section 6055,supra, that is, truth, good motives and justifiable ends. The burden on the contrary was on the prosecution to prove by the usual rule obtaining in criminal cases, to wit, proof beyond a reasonable doubt, the presence of facts showing malice including the falsity of the facts contained in the publication. The publication being qualifiedly privileged proof of good motives and justifiable ends was unnecessary.
In this respect, similarly as in the Crowley case, the court committed error. I deem it unnecessary to enlarge upon what was said by me upon this subject in that case.
Both the Bonner case and the Snelling case cited by the majority recognize that evidence of truth, good motives and justifiable ends are in rebuttal of legal malice. In theSnelling case the court said: "It appears to be the main intent of the statute, to enlarge the grounds of defence, and to allow the defendant, at his option, to meet the averment and rebut the presumption of malice, by proving, if he can, that the matters so published are true, and were published with good motives and for justifiable ends." (p. 328.) The Bonner case is to the same effect. While the personnel of the Massachusetts court was different in each case Chief Justice Shaw was the author of both opinions. Neither case, however, holds in direct terms that the evidence of truth and good motives and justifiable ends must preponderate. The personnel of the court at the time that theBonner opinion was rendered was the same as when the case ofCommonwealth v. Rogers, 7 Metc. (Mass.) 500, was decided. In the Rogers case the court *Page 106 held, Chief Justice Shaw also being the author of the opinion, that where in a criminal case, the defense of insanity is interposed, the burden of proof was upon the defendant to show insanity by a preponderance of the evidence. The reasoning in theRogers case was rejected by the United States Supreme Court inDavis v. U.S., 160 U.S. 469, 481, as against the weight of authority and contrary to the generally accepted rule obtaining in criminal cases that the defendant is presumed innocent of the crime charged until his guilt has been established beyond all reasonable doubt. Requiring a defendant in a criminal case to prove his innocence by any degree of proof is contrary to the weight of authority.1
1 Rayburn v. State, 63 S.W. (Ark.) 356; Lovejoy v.State, 36 S.W. (Ark.) 575; Hatch v. State, 144 Ala. 50, 40 So. 113; Hawthorne v. State, 58 Miss. 778, 789; Bishop v.State, 62 Miss. 289; German v. U.S., 120 Fed. 666; Stateof Nevada v. McCluer, 5 Nev. 110; People v. Willett, 36 Hun. (N.Y.) 500; Boyd v. State, 136 Ga. 340, 71 S.E. 416;Cowherd v. State, 6 Okla. Crim. 708, 120 P. 1021; Courtney v. State, 12 Okla. Crim. 169, 152 P. 1134; Carter v. State,12 Okla. Crim. 164, 152 P. 1132; Nichols et al. v. State,8 Okla. Crim. 550, 135 P. 1071; Merriweather v. State,53 Okla. Crim. 420, 12 P.2d 707; State v. Montifoire, 95 Vt. 508, 116 A. 77; State v. Lundhigh, 30 Idaho 365, 164 P. 690;State v. Milosevich, 119 Ore. 404, 249 P. 625; State v.Radick, 119 Ore. 408, 249 P. 626; State v. McGhee, 135 S.E. (S.C.) 59; Fraccaro v. State, 189 Wis. 428, 207 N.W. 687; State v. Wilkerson, 164 N.C. 431, 79 S.E. 888; Hale v.Commonwealth, 165 Va. 808, 183 S.E. 180. *Page 107