OPINION OF THE COURT BY
PERRY, J.
(Galbraith, J., dissenting.)
In tbe District Court of Honolulu, the following charge was entered against the defendant and two others:
“Poon .Kwai Leung, of Honolulu, Island of Oahu, being duly sworn says:
“That Wong Shui King, Sze To Yook and Won Kow, being-persons of envious and evil and wicked mind, maliciously, wickedly and unlawfully contriving and intending to injure, oppress and vilify one Poon Kwai Leung, this affiant, and to bring him into contempt, scandal, infamy and disgrace, on the 23rd day of September, in the year of our Lord, nineteen hundred and one, at Honoliilu, in the Island of Oahu, in the Territory of Hawaii, did falsely and maliciously print and publish and cause and procure to be printed and published in a certain newspaper then and there printed and published in the Chinese language, called the Sun Chung Kwock Bo, a certain false, scandalous, malicious and defamatory libel, containing divers false, scandalous, malicious and defamatory matters of and conceming the said Poon Kwai Leung, according to the tenor following: ” (Here is inserted a copy of the alleged libellous language in Chinese) “which being translated into the English language [617]*617were and are the same signification and meaning as the English words following:
“ ‘At tlie present time men’s minds are not as they were in ancient times. But as a snake tries to devour an elephant it cannot compare with Poon Kwai Leung (meaning that said Poon Kwai Leung, this affiant, is not as honest as the men of ancient-times and that said Poon Kwai Leung, this affiiant, is endeavoring to gorge himself and fill his, said Poon Kwai Leung’s, pockets with other people’s money in a dishonest, fraudulent and reprehensible manner). Why is this? I will now narrate about this person (meaning said Poon Kwai Leung, this affiant) so that the numerous friends (meaning the Chinese people) and virtuous men can judge whether it is accordingly, or otherwise. This person (meaning Poon Kwai Leung, this affiant) has not been in Honolulu very long and depending on the support of Consul Yang (meaning Yang Wei Pin, His Imperial Chinese Majesty’s Consul at Honolulu) was nominated to attend to the claims of various friends in this city (meaning that the said Poon Kwai Leung, this affiant, had been appointed by said Yang Wei Pin, as such Consul, to prepare and attend to claims for losses sustained by Chinese residents of Honolulu, aforesaid, by reason of certain fires originated and started by and under the order and authority of the Board of Health, in suppressing the alleged bubonic plague, during the months of November and December, A. D. 1899, and the months of January, February, March and April, A. D. 1900, before the Fire Claims Commission of the Territory of Hawaii). This is just the same as ‘He has prepared a sword to slay people before he has ascended the throne,’ exactly as what was done by Mew Chin and Lau Ching Yin (meaning that Poon Kwai Leung,' this affiant, had, previous to his appointment by tire said Yang Wei Pin, Consul as aforesaid, intended and designed to swindle and defraud the claimants for losses sustained by reason of the fires originated and started as aforesaid.
“ ‘But as regards the cases which have been heard in the near past (meaning such claims for losses sustained by reason of the [618]*618fires originated and stalled as aforesaid which have been recently heard by said Eire Claims Commission) some of the various friends (meaning the Chinese people) may have been in the country towns and some at Ewa, Waianae, Waialua and Koolau, and when they heard of the hearing they strove to get first for fear that they would be left behind and came to the city to- wait for the hearing.
“ ‘But unexpectedly he (meaning Poon Kwai Leung, this affiant) was only taking care to fill his (meaning Poon Kwai Leung’s, this affiant’s) pocket. Those (meaning such claimants) who gave him (meaning Poon Kwai Leung, this affiant) money, were summoned to be heard very quickly and those (meaning such claimants) who had no money to give him (meaning Poon Kwai Leung, this affiant) were delayed for a long time', simply seeking to waste their time (meaning to charge thereby and did charge thereby that Poon Kwai Leung, this affiant, was guilty of bribery and of accepting bribes to advance- and expedite the hearing and consideration of causes before a court of record of the Territory of Hawaii.)
“ ‘In my opinion Consul Yang (meaning said Yang Wei Pin) has fleshy eyes without eyeballs (meaning that said Yang Wei Pin was sightless and blind and without judgment) to-appoint this man (meaning Poon Kwai Leung, this affiant) to attend to this matter (meaning the claims for losses aforesaid) and thus waste the time of all friends (meaning the Chinese people).
“ ‘Besides he (meaning Poon Kwai Leung, this affiant) receives a salary of two hundred dollars per mo-nth. What ability has this man (meaning Poon Kwai Leung, this affiant) to receive such a salary? If you inquire into this person’s (meaning Poon Kwai Leung’s, this affiant’s) ability there are in this city innumerable-persons with such ability (meaning to charge thereby and did charge thereby that this affiant, Poon Kwai Leung, was incompetent and incapable of filling the position to which he had been appointed by said Yang Wei Pin).
“ ‘But in attending to this matter if he (meaning Poon Kwai Leung, this affiant) acted honestly, the claimants would be satis[619]*619fied if lie (meaning Poon Kwai Leung, this affiant) received even a little more than two hundred dollars salary (meaning to charge thereby and did eharge thereby that said Poon Kwai Leung, this affiant, was dishonest and fraudulent and had dishonestly and fraudulently obtained a large sum of money from said claimants in addition to the salary which was paid to him by said Yang Wei Pin for his services).
“ Lis regards this man’s (meaning Poon Kwai Leung’s, this affiant’s) conduct, I do not blame Wong, Pong and Ng for stating in their article published heretofore that he (meaning Poon Kwai Leung, this affiant) is one of those who have unconscientious hearts and one of a class that blackmails peoples by false representations.
“ T hope that friends (meaning the Chinese people) who- have fire claims will be on the alert and bear in mind not to enter his (meaning Poon Kwai Leung’s, this affiant’s) trap.
“ ‘I purposely publish this for public information.
“ ‘'Dated this 2nd day of September, A. D. 1901.
Yours truly,
Won Kow, Writer.’
“Which said false, scandalous, malicious and defamatory libel the said Wong Shui King, Sze To Yook and Won Kow did then publish to the great damage, scandal and disgrace of the said Peon Kwai Leung, this affiant, contrary to the form, force and effect of the statute in such eases made and provided and against the peace and dignity of the people of the Territory of Hawaii.”
The defendant was convicted of the offense of libel in the second degree and sentenced. From the judgment of the District Court an appeal was taken to the Circuit Court of the First Circuit. The jury also rendered a verdict of guilty of libel in the second degree. During the course of the proceedings had in the Circuit Court a number of exceptions were noted by the defendant and later incorporated into a bill, but of these four only are now relied upon. They are, (1) to the denial of a [620]*620motion to discharge for want of a sufficient complaint, which motion was presented before the trial, (2) to the denial of a motion, made at the close of the case for the prosecution, “that non-suit be entered on the ground that there has been no proof of the innuendo laid in the complaint connecting the complaining witness with the publication complained of, (3) to the verdict, as being contrary to the law and the evidence and the weight of the evidence, and (4) to- the overruling of a motion for a new trial based on the same alleged errors. In support of the motion to discharge it is argued that the language complained of, with but one exception is not libellous per se but becomes libellous only when read in the light of extrinsic facts, that the charge contains neither averments of such extrinsic facts nor colloquia connecting the words used with such facts, and that the innuendoes alone cannot add to' the meaning of the language in question. Whatever the law may be on this subject, — much of it would seem to have been settled in the case of Prov. Govt. v. Smith, 9 Haw. 257 — the fact remains that, as conceded by counsel for the defendant, a part of the language complained of (this is the exception just referred to) is in itself libellous. “As regards this man’s conduct, I do not blame Wong, Fong and Ng for stating in their article published heretofore that he is one of those who have unconscientious hearts and one of a class that blackmails peoples by false representations.” These words are unambiguous. There is no room for construction. Neither averments of extrinsic facts nor colloquia are needed to make their meaning plain. They are within the statutory definition of a libel (Section 299, Penal Laws), for they are such as, if false, directly tend to injure the fame, reputation and good name of another person and to bring him into disgrace, abhorence, odium, contempt or ridicule, or to cause him to be excluded from society.”
It is further contended with reference to the last quoted portion.' of the article that the charge contains no' averment or colloquium showing that the words apply to the Poon ILwai Leung who is the complainant, and also, that it does not appear from the article itself whether “this man” who is said to. be “one [621]*621of a class that blackmails” refers to the Poon Kwai Leung therein mentioned or to “Consul Yang.” Taking this last contention first and assuming (the view most favorable for the defendant) that this question of construction was one to be finally determined by the jury, we can simply say that the words “this man” ■as used in the article are at least capable of the construction that they refer to Poon Kwai-Leung and not to Consul Yang. As to the other, the charge does, in our opinion, sufficiently set forth that the complainant is the one of whom the alleged libellous words were used. See Miller v. Parish, 8 Pick. 383, 385; Hanson v. Globe Newspaper Co., 159 Mass. 293, 296. The complaint is in part as follows: “Poon Kwai Leung, of Honolulu, Island of Oahu, * * * says: that Wong Shui King * * * maliciously * * * intending to injure, oppress and,vilify one Poon Kwai Leung, this affiant, and to bring him into contempt, * * * did maliciously print and publish * * * a certain false * * * libel, containing divers false, scandalous, malicious and defamatory matters of and concerning the said Poon Kwai Leung, according to the tenor following: * * * which said * * * libel the said * * did then publish to the great damage, scandal and disgrace of the said Poon Kwai Leung, this affiant.” The colloquium is in the technical phrase often employed, “of and concerning.” The allegation is of the fact; the evidence supporting the allegation need not be recited in the complaint.
The technical objection to the motion for non-suit, that such a motion cannot properly be made in a criminal case, need not be passed upon. What has been said on the first point concerning averments and colloquia to show the libellous meaning of those portions of the article which might otherwise be deemed ambiguous or not libellous on their face, applies equally to this branch of the case. The only other points made by counsel are that no evidence was adduced tending' to show that any person other than the complainant read the alleged libellous language and understood it to refer to the complainant and that the evidence adduced was insufficient to support a finding that the language was used of and concerning the plaintiff.
[622]*622There was ample evidence tending to sliow that at the date in question the newspaper “Sun Chung Kwock Bo-” was one of general circulation in Honolulu and on the other islands and that in its regular issue of that date the article complained of appeared.
The complainant testified that he was- the Poon Kwai Leung referred to in the article. He also gave testimony tending to show that at the date of the publication he was interpreter and translator for the Chinese Consul in Honolulu, that prior to that time he had been appointed “ta take charge of the Chinese Fire Claims,” that about 266'8 of said claims had been presented to him, that for about 26 days he had been engaged in preparing such claims for the claimants, - and that his- salary for a pai’t of the time was $200 a month. The portion of the article translated in the complaint as meaning “the claims” (of various friends) was testified to by some of the witnesses for the prosecution as meaning “the fire claims.” We think that there was sufficient evidence to support the finding of the jury that the Poon Kwai Leung referred to in the article was the complainant.
It is immaterial that those- who did not know the plaintiff did not understand that the libel referred to him. Whether or not those who did know him, his occupation and other circumstances surrounding him and who read the article, would so understand it, is a question of fact to be determined by the jury, but for its determination the direct testimony of those who read it is not- essential. Other evidence may suffice for the purpose. Where, as in this case, the person libelled is referred to by his proper name and his occupation and salary are stated, and evidence is given by the complainant of facts tending to show that such description applies to him, -a finding by the jury that the article did refer to- him and that it would naturally be so understood by those who knew him, can not be set aside as being contrary to the evidence. In such a case, the elements of the statutory offense that the words must be such as “directly tend to injure” the complainant’s fame and good name “and to bring him into contempt” and that the publishing of a libel [623]*623is the maliciously putting of it into circulation “and thereby in fact making it known to- others/’ are sufficiently proven.
Moreover, can. it be correctly said that no witness other than the complainant testified that he had read the article and that he understood it to refer to the complainant? Choo Ho, the editor of a Chinese- newspaper, after testifying that he- had received, as usual, a co-py of defendant’s paper of September 2-3, 1901, in exchange, was asked: “Now wa-s there any article in this issue that you saw at that, time, about Poon Kwai Leung? ” to which he answered, “Yes, Sir.” He then proceeded to- translate the article in question, and after concluding was asked by counsel for defendant., “Is what is said in that article true? ” A. “Yes, Sir.” Q., on re-direct: “Did you mean to- testify that the article about Poon Kwai Leung was true? ” A. “Yes, Sir.” Q. “Are the matters and statements in that paper true? ” A. “No.” Yet Kai, editor of a Chinese newspaper, was thus examined: Q. “Do you get copies” (of the Sun Chung Ivwock Bo) “in exchange for that of your paper? ” A. “Yes, Sir.” Q. “On Sept. 2-3, 1901, did you get copies of that? ” A. “Yes, Sir. I have kept that,” Q. “Do¡ you remember if there Avas any article in the paper about Boon Kwai Leung? ” A. “Yes, Sir.” Lin Chin Chow, another Avitness' for the prosecution, ansAvercd in the affirmative the question, “Do- you remember seeing in it” (the Sun Chung Kwock Bo of Sept. 23, 1.901) “an article about Poon Kwai Leung? ”
The foregoing testimony, while capable of the construction that the witnesses understood by the rvords Poon Kwai Leung simply the Poon Kwai Leung mentioned in the article irrespective of any thought as to the particular individual intended, is neAertheless, in view particularly of the fact that the complainant was present at the trial, also- capable of the- construction that in the use- of that name, in the- questions put, reference Avas being made to the Poon Kwai Leung Avho was present in court and that the A-vitnesses so understood the questions arid answered accordingly. The interpretation of testimony is under such circumstances a matter to- be passed upon by the jury, and if in this case the jury understood the witnesses named as testifying that [624]*624in the issue of the paper in question they had read an article relating to Boon Kwai Leung, the complainant, and that article was subsequently identified as the one complained of, we cannot say that the jury erred.
W. Austin Whiting and Andrews & Andrade assisting the prosecution.
Kinney, Ballou & Mc-Glanahan for defendant.
The motion for a new trial presents no other questions which are relied upon.
The exceptions are overruled.