The King v. Grieve

6 Haw. 740 | Haw. | 1883

Decision of

McCully, J.

The defendant, who is the manager and part owner of the Hawaiian Gazette Printing Office, is charged with the offense of Common Nuisance in printing an obscene paper, to wit, the programme of the Hulas or Hawaiian Dances to be performed as part of the coronation festivities. It is agreed that the record of the Police Court be taken, and it is admitted to be proved that the defendant is not acquainted with the Hawaiian language (in which the paper was written); that he did not know the nature of the matter printed; that it was brought to his office by an officer of the Government; and that he considered it was official matter, the person bringing it causing it to have, the imprint of the Royal Arms. In fact, it was left to the Hawaiian foreman of the office, who takes sole charge of the printing in the Hawaiian language, and Mr. Grieve had personally nothing to do with it.

It is not denied that the real import of the language and figures of speech of the paper which was printed is obscene.

The case is submitted to the Court solely on the point of law, whether the defendant is criminally liable in common nuisance for the printing of a document which contained obscene matter, which was in a language of which he was ignorant, nothing putting him upon inquiry, and the copy coming from an official or public source, and intended to be used, and in fact afterward used, by officers of the King as the programme of public festivities.

The strongest statements of authority to support the prosecution are such as are to be found in 1 Russell on Crimes, pp. 250, 251, citing Lord Hardwicke in 2 Atkyns, 472: “Though printing papers and pamphlets is a trade by which persons get their livelihood, yet they must take care to use it with prudence and caution; for if they print anything that is libellous it is no excuse to say that the printer had no knowledge of the contents, and was entirely ignorant of its being libellous.” 1 Hawk., P. C. C. 73: “But if a printer is confined in a prison to which his servants have no access, and they publish a libel without his privity, the publication of it shall not be imputed to him.” “Upon such foundation,’’ says the text of Russell, “it has for a long time been held that the buying of a book or paper containing libellous matter, in a bookseller’s shop, is sufficient evidence to charge the master with the publication, although it does not appear that he knew of any such book being there, or what the contents thereof were, and though he was not on the premises, and had been kept away for a long time by illness; and. it will not be presumed that it was bought and sold by a stranger; but the master must, if he suggests anything of this kind in his excuse, prove it.” Also from the text of Russell: “But there may be cases in which the presumption arising from the proprietorship of a paper may be rebutted.”

From the above citations the rule might be derived that in such a case as -this at bar, the proprietor or manager of a printing press will be chargeable for an obscene document printed in his establishment, the legal presumption being that he knows the character of the work done by his servants, and that his ignorance through mere inattention or absence will not relieve him from a responsibility which lies on him, but that this legal presumption may be rebutted by actual proofs. I think that what is here taken as proved rebuts the legal presumption in his case. Mr. Grieve had absolutely no knowledge that the manuscript brought to his office contained obscene matter, and no circumstance called upon him to cause a scrutiny to be made of its contents. Quite the contrary. To hold that a person innocent- in fact, and not chargeable with blame for being ignorant, is criminally responsible would be a harsh construction of the law.

W. R. Castle, for- Crown. A. S. Hartwell, for defendant. Honolulu, April 4, 1883.

A fundamental principle of criminal law is expressed in the maxim: Actus non facit reum nisi mens sit rea, i.e., the act itself does not make a man guilty unless his intentions were so.

A case very much in point is found in 1 B. and H. Lead. Crim. Cases, pp. 551-2. The indictment under the Mass, statute, similar to our own, charged the defendant with selling a book containing obscene language, but did not allege the defendant’s knowledge. Abbott, J., sustained a demurrer on this ground, holding that knowledge was a necessary ingredient, and saying that the argument urged for the prosecution that it was intended to make the sale of such books punishable whether their contents were known or not, should not obtain, saying that “generally^ intent, knowledge, is of the very essence of crime, and there must be very strong reasons shown to take any case out of the application of this general rule.”

Upon such considerations, I find the defendant Not Guilty. '