The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1879-01-18
Supreme Court Of the Hawaiian Is
January Term, 1879
The King vs. Henry Brai.ey.
IALll- = - aLUU NJ
Opinion 5y Harm, c. J

CEhFH-% ~ ~ q 80
The Defendant 80. indicted at Ibis term q the
Court for having s~uuggled into the Port Of Homo
lulu one hundred and foriy-nise tins ofopiu,o with
out paying or secuI -ug to pay the duties thereon,
to which accusation a plea Of guilty vas entered
When the accused came up for sentence il vas
suggested tLa; there vas no discretion left to the
Court as to wbsther the punishment should be fne
or imprisonment hut that. BY force Of the law,
Chapter WI o!the Session Laws of 1874, entitled
Ar Act 70 restrict the Importation and sale Of
opium,' the penalty must be Imprisonment. and
imprisonment only, With or without hard labor.
On the other hand. it was c~ontenied By Couuse! for
the Respondent iha; The Respondent had been IN
dietei FOR smuggling, and that the intent Of Tie
Act to restrict the importation and sale OF opium ~
was not 10 alter, abolish or amend the first section
Of Chapter Xxx Of the Penal Code. which euacts
that any person who shall be " convicted Of the mis-
demeanor Of smuggling shall he fined not less than
Bfy nor more than one thousand dollars, or impr!s-
oned at hard labor no, more than fu0 years, in the
discretion Of the Court and that therefore the Court
nigh, impose the alternative penalty Of a fine.
The Chapter LVI Of the Session Laws Of 1874, sec
ton first reads as follows The importation Of opium
into this Kingdom, except as authorized by section
second Of this Act, is hereby strictly prohibited and
whoeverishall import, sell, give, or furnish opium or
any preparation thereof to any person 10 this King
dom, except as provided in said section second, shall
be imprisoned for a term not more than turo year,,
with or without hard labor, in the discretion Of the
Court and section fifth Of the same act enacts that
d" Nothing in this act shall be construed to exempt
any person or vessel from the pains and penalties
prescribed by the laws Of the Kingdom against snug
Cling
Now it is argued by the Respondent that, BY force
Of the last quoted section, he is liable for smuggling,
and therefore the Court may exercise its discretion
under the LXXth Chapter Of the Penal Code.
The first section Of the last mentioned Chapter de-
fines smuggling TO be the Importation, ETC., Of any
goods, wares or merchandise subject to duty without
paying or securing the payment Of each duty.
The ordinary definition Of smuggling is The
offence of importing prohibited articles, or OF de-
frauding the revenue by the introduction Of articles
into consumption without paying the duties charge
able thereon" Wharton's Law Dictionary ct passim.
There are other penalties for the offence Of Snug
Cling provided by Chapter Xxx of the Penal Code,
beside the fine or imprisonment, and it appears TO us
that. the force of the fifth Section Of the Statute Of
1874 is to say, that Notwithstanding that opium is
now prohibited, it is still an object of smuggling, and
to enlarge the definition Of the Statute in that re-
spect, so as to make it that the introduction Of this
prohibited article is TO be known as and termed
" Smuggling" But the will of the Legislature
m~anifestly is, that tho pecuniary penalty is to be
taken away or abolished, and the only penalty Is to
be Imprisonment in other words, the Legislators
has seen fit to treat the Importation Of this article,
not as a fraud upon the revenue, which may be ex-
plated and atoned for by a pecuniary penalty, but
as an injury to the public health, by the introduction
of a noxious drug.
They, in effect, say that you shall not consider the
introduction of this drug as a matter Of profit or
loss as q business by which you stand to win q large
sum or lose o considerable sum on being detected
but if you engage in the business, you shall be pun
ished for it aud whether you be rich or whether
you be poor you shall be punished in the same man
ner, by being deprived Of your liberty, which may
be said to be equally valuable TO the rich and to the
poor, or may in some sense be said to be more val
liable TO the rich than 10 the poor.
Undoubtedly the Police Magistrate deemed this
very grave offence, and that a punishment greater
than a foe of FIVE hundred dollars ought to be in
ficted, since his jurisdiction would have extended to
a fine of FIVE hundred dollars under the 29th section
of the Chapter above quoted and in this estimate
of the offence, undoubtedly the public sentiment
concurs, as is made evident by the enactment of the
Legislature.
But we are of the opinion that this offence of
' Smuggling opium - is punishable under the First
Section Of Chapter LVI of the Session Laws of 1874,
and under that alone and Chapter LXIII of the
Session Laws of 1876 Gan act to amend Chapter LVI
Of the Session Laws of 1879 enacts that 1.-The sew
eral Police and District Courts Of the Kingdom are
hereby invested with the authority TO try and deter
mine all cases arising under this law"
This case is therefore RENTED to 4 the Police Court
Of Honolulu, and the Police Magistrate of Honolulu
is instructed TO pass sentence.
CmAs. C. HARRIS, C j..
\. FRANCIS JUDD, J
LAWRENCE MCCULLY, j.
Hrs Elk. The ATTORNEY GENERAL, for the Crown.
j. VI. DAVIDSON, for the Defendant.
Honolulu, January 18th, 1879.