The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1869-11-20


At the last term of the Circuit Court for the
Island of Kauai, a Chinaman named Apuna, was
tried and convicted of the offense Of selling opium
without license, and was sentenced by the Court
Judge Widemann presiding) to pay a fine OF
$500, with S77.S7 costs. Apuna not paying the
fine, was placed in the custody of the Marshal,
by mittimus from the Court, instructing him to
see that the said sentence was duly executed.
Mr.. r. III. Stanley and A. F. Judd appeared on
his behalf, and on Monday last. had Apuna
brought before His Honor Justice Hartwell, on a
writ of Habeas Corpus. MIR. Stanley argued
that the prisoner was illegally held by the Mar
shall, and imprisoned. at hard labor, there appear
ing to be no order of Court to that effect, and
moved his discharge. The statute under which
defendant was tried, provides as a punishment
for selling opium, without license, a line not to
exceed $500, or imprisonment at hard labor not
to exceed six months in the direction of the Court.
In this case, the full extent of the fine was not
imposed, but nothing mentioned of imprisonment
with hard labor or otherwise. BY provision OF
statute, when the sentence is for the payment OF
a fine, and payment is not made, execution can
issue. 1t is also provided that where a party is
sentenced to pay a fine, or in default OF payment
be imprisoned at hard labor until such fine be
paid. any poor convict so imprisoned for non pay
ment of a fine, may, ut the expiration OF one
year, make application to any two justices, who,
on proof shown to them that said convict Is poor
and unable to pay the fine, may order his release.
But neither of these cases applied to the one at
bar. and Mr.. Stanley strongly argued that there
was nothing, either in the mittimus of the Court
70 tho Marshal in m stofnforu nrnviSian
by which his client could be held in Imprisonment.
His Excellency the Attorney General, appeared
for the Marshall: The immemorial practice in
our prisons had been, that where a party was
committed for the non payment of Il fine, it was
discretionary with the Marshal to put him at
work at hard labor until such fine was paid.
Besides the statutes for the regulation of prisons
and prisoners, there were certain rules and regu-
lations additional thereto, prescribed by the King
and Cabinet Council, which said rules and regu-
%lations, the Attorney General submitted, the
Court were bound to take cognizance of, as having
the force and effect of statute laws. In this case,
the man Apuna had been ommitted to prison in
charge of the Marshal for the non payment of his
fine, and in the usual and ordinary practice, he
was to be held to labor at % cents per diem until
such me WIS Paiu or Until nc Was otherWlse
discharged.
After the arguments had been closed, the Court
the prisoner until the following Wednes-
day morning at 10 O'Clock, at which hour, Justice
Hartwell, in a brief but comprehensive review of
the case, laid down the law of commitments and
the principles of habeas corpus, and concluded
by ordering the discharge of the prisoner Apuna
from further custody. In the course of his re-
marks His Honor observed, that the idea of any
discretionary power being vested in the Marshal
and further, that the Court, under
the Constitution, could not recognize as having
the force of statutory law, any rules and regula-
tions imposed or prescribed by the King and
Cabinet Council for the Government of prisons
and prisoners.