The Hawaiian gazette., 1869-12-01

OF HIS Honor J,,o. Montgomery, IN the case Of
the KING ss. T. C. He1lck

/ Police Court for three das fi--ing the past
week, and was made undcr sections / and 3
of the Goth chapter of the revised Penal
| Code, which read as follows:
/ !. The receiving of stolen goods is, in con-
/ tract or otherwise, the fraudulentlv taking,
accepting of, OBTAINING, keeping, concealing,
or disposing OF, the goods Of another, stolen
embezzled. or Illegally extorted by any one,
or aiding therein, whether the same were so
stolen, emhezzled. or so extorted, within or
without this Kingdom.
9. Whoever, without fraud, obtains DOS
session or control of goods, knowing them
l to he stolen, and afterward. fraudulenty de-
/ tains, keeps, ennceals, or dispnses of the
same. or aids therein. with III intent that
/ the same shall not be restored to the owner,
/ hut that the owner shall be deprived and de
/ spoiled thereof, or of the benefit thereof, is
guilty of the offense Of receiving stolen
/ goods
The task thus devolving upon me is, for
obvious reasons. one of no ordinary gravity
and responsibility, and that approached the
| solution of tie problem whether or not a
/ jury of the country would probably convict
or acquit the defendant on the evidence ad-
duccd, with an adequate appreciation of its
solemnity and Importance. The law which
imposes this onerous duty on the Police
Court is found in Sec 905 of the Civil Code,
in the following words:
Sec. 905. In all cases of arrest for crimes
or misdemeanors cognizable before a jury,
the magistrate in whose Jurisdiction or on
whose warrant the accused was arrested,
shall, upon the bringing up of the accused,
proceed to consider whether there is probable
cause to believe that jury would, upon the
evidence adduced, convict the accused Of the
offense with which he is charged. Said
Justice shall reduce To writing the substance
of the evidence adduced, with the names of
the witnesses, and If, in his opinion, the tes-
timonv do not warrant commitment for trial,
he shall release the prisoner, netting that TACT
upon the docket; but if, in his opinion,
there is probable cause to believe that con-
vicfion would take place before jury. he
shall make ont, and deliver to a constable
mittimus,-&c.
It is in proof in the testimony, "a reasonably
fair, although not verbatim, report of which
has beer published that the whale-bone in
question had been undoubtedly stolen in the
first instance, and placed in the defendants
premises in the night time, and in the morn
ing, by the connivance Of his own native
porter, placed in the Westinghouse in APP
parently perfect order, and in which position
it was first seen by the defendant when he
went to have it weighed, after his arrival at
or about 9 in the morning; also, that he had
purchased all the lots at 40 cents per pound,
and had placed it in his cellar in the ordinary
way, with all its original marks and ties, just
as received, and without the slightest oblit-
Grafton
All that remained TO be proved was the
all-important and essential element in the
case viz, whether, and how far, the defend
ant was aware, at the time he purchased and
stored away the bone, that it had been stolcu
which the law calls "guilty knowledge"
that this was sought to be established both
by direct, circumstantial, and inferential tes-
timony; that the only direct testimony was
that of Nakookoo, the chief culprit, who had
been the prime mover in all the chain of
larcenies proved in the case, and on whose
evidence l shall comment hereafter.
1t appeared in evidence that the parties
who called on the defendant for the sale and
payment of the bone were natives, and chiefly
boatmen, known TO many as such, and it
was contended by the Attorney General that
such fact ought to have excited the defend
ants suspicious, and put him on inquiry;
but, on the other hand, there was not any
proof that the defendant had ever seen
any of them before aud, moreover,
that il had been proved by Mr. J. c.
Piuger, that the defendant was entirely I'M
acquainted with the bone trade, both gen
orally and in detail, including, probably, the
kind of persons by whom it might be offered
for sale; and further, that it was proved that
several lots of bone had been openly sold by
others than captains or agents, and that Mr.
Schaefer had bought one weighing over 100
pounds, belonging to cooper, but which
evidence is not included in the published
report.
1t was further contended on the part of
the Crown, that the character of the pack
ages brought to the defendant for sale, and
made up in cargo form, with the cords usually
adopted on board ship, and more especially
as some of the parcels were distinctly marked
with the name of the ship, ought certainly
to have aroused the defendants suspicious,
and put him on his guard and there can be no
doubt of the force and justice of this remark
in an ordinary case, where these facts were
known, or brought to the notice of the
purchaser; but TO this it is replied by the de-
PENDANTS counsel that the defendant is
proved to be SO afflicted with defective
eye-sight as TO be quito incapable of diserim-
mating or noting such matters, and none OF
his clerks seem to have remarked them, or
thought them worthy of notice. consider
1t clear that in point Of fact they were
wholly unnoticed by, and unknown to de-
PENDANT till after the arrival of the police
officers. From the proved effectiveness of
the defendants eye-sight, il seems impossible
that he could have seen them where he stood
in the weighing house; and Mr.. Anthem,
who was also there, admits that he did not
observe them, although the side Of the parcel
on which the word "Onward' was printed.
is proved to have lain uppermost. But if
the defendant was aware of the existence of
such evidence of identity, and yet took no
step to conceal or efface it, such fact must
operate in his favor, as evidence of the alb
sence of all suspicious concealment, usually
a concomitant of criminality. Capt Pulver
says that if the slab on which the word "On-
ward" was printed in large and conspicuous
red letters had been remoyed-as could so
easily have been done, he had no other means
of identifying his bone, and he would be
chimney rnu1a indaad who u-0rld 80 60.