The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1880-09-18
Supreme Court of the Hawaiian Islands
July Term, 1880:
HARRIS, C. J., JUDD AND MCcULLY, J. J.
Opinion ofMe Majority Of the Court By
,EL6H. II

Opinion Of tie Moyority Of tie Court By
Judd, IL.
The Collector General of Customs on the
18th of November, 1879, filed a libel in this
Court, alleging that, on the I'd of said No
vember, thirty-six tins of opium containing
each about three and one-half pounds, had
been struggled into this country from the
bark Kalakaua, and praying for the condem-
nation and forfeiture of the said vessel, her
tackle, apparel and furniture, and the opium
aforesaid, to the use of the Hawaiian Gov
eminent. After a full hearing the Chief
Justice on the 24th of November, decreed
the condemnation as prayed for. Appeal
was taken to the Court in Banco, and at the
hearing, a number of affidavits which had
been taken erparte in San Francisco, were
admitted by consent of the libellant and also
other evidence was introduced. 1t appearing
that the Court were unable to agree, a rear
gument was ordered, which was accordingly
had before the full Court at the July Term,
1885.
Meanwhile, on the 24th of January, 1880,
an order was made allowing the vessel to be
discharged from the Marshal's custody upon
filing a satisfactory bond, which was done.
The various questions of law which We're
raised by counsel for claimants, nave been
decided by this Court in former cases, and
there is no occasion to review them now.
We understand that the Government does
not press the condemnation of the vessel,
unless it is shown that the owner, master or
mate were principals or accomplices in the
transaction of smuggling opium, that is, if
the smuggling was done by passengers or
shippers, and the circumstances show that it
was done without the completely of those in
charge of the vessel. and that they could not
reasonably have prevented it, we are not
asked to decree condemnation.
That the alleged quantity of opium skill
fully concealed in thirty-six sticks of fire.
wood was brought to this port in the said
bark, is admitted. 1t is conceded by the
libellant's counsel that the evidence excul-
pates the owner in San Francisco.
George w. jerks, the master of the bark,
admits in his answer that thirty.six tins of
opium were brought into this Kingdom in
the bark, but says that after she arrived in
Honolulu, and while she was discharging,
the opium was discovered by Custom House
officials, concealed in pieces of firewood
which had been brought as freight ; that
about 20 cords of this firewood had been
shipped on the bark in San Francisco by
one or more Cinnamon, one of whom came
as passenger whose name he had forgotten,
and who paid freight on the firewood at Ho-
nolulu. The mode of concealing the opium
in the frewood as shown by the specimen
in Court, was by splitting the stick, NOR
ticing a place in the stick large enough to
contain a tin cylinder Is inches or so long,
which was placed in the mortice and the
two pieces of wood fastened together by glue
and nails.
Mr.. w. A. Markham. Port Surveyor and
Custom House guard, testified that the bark
arrived on Sunday, the End day of Novem-
Der; that he vent on board and asked the
Captain if he had any Chinese passengers,
he said, "yes;" asked him if the Chinese had
any freight, he said "No," which is argued
does not correspond with his averment in his
answer, that a Chinese passenger had brought
the wood as freight. The wood is not on
the inward manifest, but the freight list
shows that 20 cords of frewood were ship
ped by Cinnamon consigned to Tongkee,
freight $3.50 per cord. 1t is noted on the
freight list, g no mark" 'no bill of lading."
Mr.. Eldrich a clerk of w. g. irwin &
Co., the c~onsignees of the vessel, testi6es
that a Chinaman paid the freight upon the
wood, $125. Eldrich asked him if his
was Tongkee and he said, eyes" He
paid the money and got an order for the
wood.
Col. w. F. Allen, the Collector General
says, that a Chinaman brought a Custom
House blank permit with 90 cords of fire.
wood written upon it, for a permit. "He
did not know his name, said the firewood
did not belong to him, and / told him he
could not get a permit; he said he knew
who it belonged to, and I told him that the
party must come for it; have never seen
him since nor has any one applied for permit
for the wood"
The passenger list signed by the Captain
the name of Along as passenger,
the only Chinaman on board. Capt. jerks
that he did not include the firewood
on the Inward Manifest because he had no
record of it, because there was no bill of
lading for it. On being shown that the
wood was on the freight list, he said he did
not know whether the list was opened on
the voyage down or not, and on reflection,
added that he had looked at it to see the
amount of the freight money. He says that
the Chinaman who came Down as passenger
brought him in Honolulu the receipted
bill, and that was the first he knew
claimed the wood.
He said further, that this Chinaman was
not entered as a passenger at the office but
that he found him on board twenty minutes
after the vessel left, and made him pay $50
passage money under threats of putting him
off on the tug boat.
A. l.. Richie testified that he is the
Master of the bark d. C.. Murray. but was
mate of the Kalakaua. and in that capacity
superintended her loading at San Francisco.
He took command of the Murray and both
vessels sailed the same day from San Fran
cisco. He says that this firewood which he
by his eye to be 20 cords, was
hauled down to the vessel by two Cinnamon
On a one-horse dray. He took the China
mems word that it was 20 cords. Seven
loads were hauled the first day, afterwards
three loads, and two loads another day and
so on. That he took the first lot down be-
low and used it as ~dunnage. We piled the
wood on the wharf until we wanted to use
it. He says he did not know the China
men, that he did not give them a receipt,
they did not com for it, but said
he would when all the wood was down.
he Hid NOT nnt the uood nm the carro