The Hawaiian gazette., 1871-10-18

! NSHSSe%uiNhk VI MS ldAs a Ot4SuAA5iauSC NLlNu
indicated the anlmus which dictated the article
in question. Both the Captain aud Doctor Of
the ship proved that the accused was a most
inveterate opium-smokor, and that the quantity
found on his person did not exceed his usual
daily allowance, the Doctor adding that unless he
had it regularly, his health would be considerably
damaged whilst A-hoi, the Chinese constable
and Government interpreter proved that that
quantity was often consumed in half-a-day by an
inveterate smoker
The law applicable to this case is Chap. 20 Of
the New Penal Code. the Ist Sec of which
defines smuggling TO be " the importation > =
Of any goods wares or merchandise subject to
duty without paying that DUTY, or passing or
attempting to pass through the Custom House
any false forged or fraudulent invoice" The
way in which the two offences are placed side by
side, and indeed the whole context of the chap
ter, seem TO Indicate that the intention to
defraud by evading payment of the duty is a
necessary element in the offence described in
the section-as il is in other Statute offences.
The 33d Sec. enacts that the words goods
wares or merchandise used in that chapter shall
be construed to include all property of what
sOeFer kind and description" and the rigid
enforcement of the law, as insisted on by the
p. C. A., would necessarily render passengers
watch, purse or pencil-case in his pocket quite
as much concealed as was the opium in the
present case) aud property as much liable TO
seizure as the opium in the pocket of accused.
The 2sth Sec enacts that upon sworn
complaint a police or district justice may issue
a warrant for the arrest of the party charged
with smuggling, and if on the examination
he shall be of opinion that there Is probable
cause TO believe upon the evidence produced
that a conviction would take place before
jury, he shall commit the person for trial and
by the 29th Sec. full Jurisdiction is given to the
said justices to try and determine all cases of
offences against the Revenue Laws when the
amount of fine does not exceed $500, subject to
appeal to the higher courts; so that the accused
has in all such cases the ultimate right to jury
trial, and the duty of the Magistrate as defined
by the 2Sth Sec. is to form his opinion whether
there is probable cause to believe that upon the
evidence before him a jury would convict the
prisoner.
The accused in this case was proved TO be
rich passenger on transient ship, on his return
to his native land, and that the opium, which
was no more than his ordinary daily consumption,
was found in his pocket: and if on the evidence
no intention to eyade the payment of the duty
was proved, or conld be reasonably inferred from
his conduct and other circumstances, and a
foyti0Ti if the evidence led to a contrary
as would seem to be the case
from the fact that he was proved to be person
Of ample means, to whom the paltry amount of
duty chargeable on three dollars worth of opium
could be no possible object and that the opium
was more probably intended for his own smoking
Turing the time he was on Shore as a medicinal
equirement, then it does seem to us most
Improbable that any intelligent jury of foreigners
Iere would convict him of any Intentional
vasion of the duty, and the magistrate would
eem to have arrived at sound opinion on the /
ubject
If the arrest and punishment of this Chinaman
we're necessary under the express provisions of
be law and the facts Of this case, then there is
o escape from the like necessity in the case of
passenger coming on shore for few hours from
ne of the California or Australian steamers.
his cigar-case shall be found concealed in his
ocket well replenished with liberal supply.
he Adratissr says there is no use III having
laws unless they are enlorced,"-we wonder
neither the writer in that paper would advocate
leir enforcement to this extent.
As regards the three California cases cited by
le P. c. A. as evidence of the rigid and literal
lforcement of the Revenue Laws there, as con
asted with our lax practice here, the p c. A.
quite wide Of the mark inasmuch as they have
, kind of analogy to the case in question.
hey were all vessels arriving at San Francisco
their port Of destination and discharge, and
here foil manifests OF the cargo are required to
, delivered to the Collector of Customs, and
e failure of which properly subjects them to a
lie ian omission which has occasionally been II
lnished here in like manner; whilst the Cecilia
lly called here in the course Of long and
dious voyage, and her passengers were under
legal obligation whatever to the Custom
ouse.
If the p. c. A. be really serious in advocating
e rigid enforcement Of this law to its bitter 7.
d." against all passengers calling at this port, ,
} are under the impression that they stand
,ne, and that this community to a man would
their faces against such a course of procedure,
destructive to the character of our port, :
lich would very soon be avoided by everybody
10 could escape it. 7
We must not be understood as unfolding or .
cusing the use of opium, but simply as giving
the above remarks a plain statement of the
Sc as it occurred, and the grounds upon which
: person accused of smuggling was acquitted
the Police Magistrate W