The Hawaiian gazette., 1877-11-21
WEDNESDAY, NOV. u. 1877.
lands, October Term, 1877. in
BancO.
REX rs. RALAILAO.
REX rs. KALAILAO.
Judd and McCully, J. J.
Opinion by Judd, j.

The defendant charged in the Police
Court with the ofense of " Illicit Capitalization,
to which he objected that it was not an Otfense
defined by statute. This objection was over
ruled pro forma and he appealed to the Su-
preme Court in bauco.
In order to HI understanding of this case, some
review Of the legislation on this subject becomes
necessary.
In the Penal Code of 1885, in chapter XIII,
appears the following section
Section 3. A man and woman who not be
ing married to each other, ewdly associate and
cuhubit together, shall each be punished by
fine not exceeding one hundred dollars or i'm
prisOnment at hard labor not more than one
year.
The Iewdly associating and cohablting toge-
Their Of t nun aud woman not married to each
other, is here made otfense distinct from for
uicaton. The index of this chapter calls this
offense " Illicit Capitalization"
Ga the 22ud of June, 1852, the Legislature
passed the following law;
An Act to abolish the law Of Illicit Cohabi.
tatiOn.''
Whereas, the law relating to illicit cohabita-
ton is misunderstood by the District Justices.
mis-applied, and made the engine of great.op
preston Therefore, be it enacted by the Mobiles
and Representatives Of the Hawaiian Islands in
Legislative Council assembled
Section l. "'fhe fifth section of the 18Th
chapter of the Penal Code relating to illicit CO.
habItation shall be and Is hereby repealed, and
such ofense shall hereafter be punished adul-
terry"
On the 18th February. 1859. the 18th chapter
OF the Penal Code was amended by lessening the
punishment for adultery and fornicatIun and
again in 1866, the Legislature passed an act
amending the law relating TO adultery and forni-
cation, this time increasing the punishments Tor
these ofienses.
In the compilation Of the Penal Laws of this
Kingdom made in 1869. aud adopted by the
Legislature in 1870, US the law OF the land, we
find section Of chapter IL as follows:
"As amended by the Act of June 22nd, 1852
illicit cohabilation shall hereafter be punished as
adultery
1t conceded that the Courts cannot recog-
nze and punish ofenses which are not defined
and made such 10y statute. In this Kingdom
where Penal Code has been adopted, there are
no offenses al common law.
Now it seems 10 Us that the plain intention OF
the Legislature when it enacted the law Ito
abolish the law of illicit cOlIabtatlon," was to do
away with the distinctive Ofeuse of lewd us
sOciation and c0habltation oil man and women
not married 10 each other" q state of living TO
gether from which illicit sexual intercourse is
such living together is punishable as adultery
This appears to be as if the Legislature had said
in terms, viz: The gst of the offense Of illicit
cubblion is the unlawful sexual intercourse
which this living together presumes hereafter
it shall be punished as such.' If the Legislature
had merely intended to lessen the punishment By
saying that this ofense should have the same
punishment as adultery, the mischief which the
preamble recites and which the repeal of the
section was intended to remedy, would still exist
Now adultery is defined by our laws as an of
Tense, so also is fornication. The former being
10 violation of the sanctity of the marriage re
lation is punishable more severely than the lat
ter. But both of these definitions cover The
ordinary cases OF violations of The laws OF purity
and virtue. 1t is not sufficient as it seems Il
| us, to say that these words illicit cohabtalion
mean something. What they mean must be- de
clared by the law TO be contrary TO law and pun
lshabIe by law. I" Illicit" means unlawful o
| forbidden" and Capitalization" means " iiyinl
together as man aud wife," But it needs fur
Their Statement. TO that effect TO show that th
living together of n and woman who hav
not inter-married is illicit or unlawful.
Penal laws must be construed strictly. No
thing can be taken by implication as against
person accused. ..r.
1t may not be presumed that lin holding, q
we DO, that the law does not now recognize tn
distinctive ofense of illicit cohablta;iOn) Their
is no law which will punish the cohabiting ant
living together of u man and woman who are no
married, and that only exact proof of positiv
acts OF sexual intercourse will warrant convc
tions. We do not so hold All the facts am
circumstances that lead 10 the fair inference O
adultery or forncatiOn as necessary conclusion
may be shown In evidence under prosecution
for adultery or fornicatiOn, precisely as the
would be if the prosecution was for illicit &C
habitation.
AS Lord Stowell has said, 1t is not neces
sary to prove the direct fact of adultery, becaus
ii 1t were otherwise, there is not one case in
hundred in which that proof would be attainabIe
il is very rarely, indeed. that the parties are SUI
prised 10 the direct fact of adultery The Gil
cumstances must be such as would lead tn
guarded discretion OF q reasonable and Just ma
to the conclusion"
2 GreenIeaf 40.
This ruling need have no effect to relax tn
execution OF the laws on this subject.
The judgment OF the Court is That the obieC
ton taken by the defendant is good and he
accordingly discharged.
The case OF Rex VS.. Kahelemauna being tn
same as this, the same judgment is made in tina
case.
Hon. A. S. Hartwe Attorney General, fc
the Grown; &. Preston and G. Brown for DE-
denfant KalaIloa. w. r. Castle for defendan
kabelemauDa
Honolulu, October 81, 1877.
supreme Court of the Hawaiian H.