The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1877-06-02

noon april S0th) when be received complaints
from the passengers and crew Of bis shameful
conduct at sea, which is detailed above.
Il seems that the United States Vice Consul.
after receiving these representations sent on
Tuesday the Ist Of May az ia A. VI. notification
to Captain Gray that he was temporarily sus.
pended from the command OF the Bark d" Mary
Belle Roberts, and Mr.. J. A. Top, the first ohfeer
was placed in Shief command pending the in
veStigation OF the case. The Captains arrest
that very evening and subsequent mmii the
10th May, to the Insane Asylum, has, / presume.
Obvisted the necessity Of any further invesiiga-
ton by the Consul.
It Is urged that the Captain was displaced
from bis command before be had actually landed
a1y opium, and therefore his principals. the owners
Of the vessel, oughs not to BE- held liable for the
consequences Of his misconduct
Our Statute does not limit the power Of the
Court 20 decree g forfeiture 70 csses where the
owners, or the Captain az their Agent. are
directly engaged in the smuggling. Il reads
that " ersTy person who shall in any way be en-
gagged, &c shall be deemed q snuggier aud the
goods so Struggled or attempted to be Struggled
and the rsSSel from tehiek they are Suuooled
or attempted 10 be smuggled &c, Sc. shall be
forfeited aad may be seized, condemned and sold
for the benefit Of the Hawaiian Government"
/ remark here that / suppose a person resident
on shore may smuggle from a ship although
it would De difficult, il not impossible to do this
without having ONE one on the vessel as an
abetter. Captain Gray however. was not entirely
removed from the command his effects were
still on board. and If this AFFAIR had not resulted
as u mas. II IS possible that the Consul would not
have permanently displaced him.
II is not necessary for me to say now that the
Court would be obliged 10 decree 3 forfeiture
Of a ship from which goods were struggled by =
mere passenger in such circumstances as would
completely negative all suspicion of the owners
or masters completely with it, or Of their know
ledge of II or even of negligence in, while having
the means of knowledge, not discovering and
preventing. 1t is not likely that such q case
will ever be presented to the Courts.
In this view it is not necessary for me 10 discuss
the question whether the owners of this vessel
ought to have known of Captain Gray's drunk
enness on the last passage up to San Francisco,
and while there dismissed him, and for not doing
so, are now liable for all his acts-for as / have
said, it is not necessary to have direct proof of
the completely of the owners Of a vessel in the
smuggling, this being a proceeding in rem in
order to decree a forfeiture
The fact that Captain Gray was not displaced in
San Francisco only shows that he was not thought
insane IN San Francisco, By the owners Of this vessel,
and, insanity sufficiently settled to render him ire
sponsible for his acts, when he procured this opium
and brought it on board the vessel with the intention
of importing it into Honolulu illegally, 1 think
would have been noticed by his owner Mr.. Roberts,
or by some persons from the Office of the Agents in
San Professionalism Blanchard s Co., who are
testified to have been seen frequently on board the
vessel in San Francisco concersing with the Captain.
A person attempting to smuggle is deemed guilty
Of the substantive otfense. An attempt. to commit
an ohense, is by our law, some act done towards
committing and in part execution Of the intent TO
commit the same; IN this case the taking the opium
on board with the intent to smuggle is an " at
tempt"
Fully recognizing the importance of this case to
all parties concerned and believing the law to be
as l have stated it, as regards insanity as q defence
to a civil as well as a criminal prosecution and
believing that Captain Gray was not in such Q
condition of insanity as to preclude his respon-
sibility, / cannot do else, but apply the plainly
declared law to the facts of this case as I have
found them, and pronounce in favour Of the
Libellant.
A decree of forfeiture will be signed, condemming
the 81 tins of opium and the Bark Mary Belle
Roberts her boats, tackle, apparel and furni-
ture. .-
A. FRANCIS JUDD.
-. Justice of the Supreme Court.
HON. A. S. HARTwELLf
Attorney General for libellant
j. NJ. DAVIDSON AND E.. J. O'HALLoRAN
for claimants
Honolulu, May 18th, 1877.