The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-09-06
supreme Court az the Hawaiian Islands,
July Term, 1sS2-Tn Banco.


rHH KING vs.. ALI ALBo AND AVA.
On Tie following Bill Of Exceptions; Circuit
Court Of the Sd Judicial Circuit, MAY Term
Hilo, 1882. Rex vs.. Ali, Abo, Aehu and
Aki. Charge; Having opium in possession.
Appeal 10 the Circuit Court, Nay Term $50,
from O conviction before the Magistrate ior
the District Of Kau. Island Of Hawaii
Bo It known that the above entitled cause
coming on to be heard before a Jury Of for
eigners duly empannoled to Try the case, at
the May Term in Hilo, on The sih day Of May
A. p. 1852, Austin J., presiding; Edward
Preston, ESQ, acting for the Attorney General
and William r. Castle, Attorney fo5 the de-
foudants; the said defendants were charged
with having opium in their possession At
Pahala, kau, Island Of Hawaii. on The 81 day
| Of December, ssh, contrary 20 the form Of the
Statute in such case made and provided, in
accordance with the return Of the District
Magistrate hereto attached and were i1intly
| tried for said offences
Kamaliikane, Kiaaina and Waihopu were
called as witnesses for the prosecution, and
testified, that they were present and witnessed
a search for opium on the premises Of Chung
Peu and company az Pahala, on the evening
Of the 81 dayof December 1881, In the house
occupied by the defendants Ali. AbO and
Achu and there found three parcels containing
opium or preparations thereof, one in or upon
the personal effects Of Ali, separate from the
others, one in or upon the personal effects Of
| Abo, separate from the others, and one in OF
upon the personal effects Of Achu separate
from the others; and also that in the house
occupied by Ak and another person, parcel
/ containing opium or some preparation thereof
| was found on q staff or beam Of tho house.
/ Whercupou the prcgccutiOn rested
Aud the said defendants by their counsel
| thereup0n moved that the complaint DO dis
missed and j verdict Of acquittal be ordered
| in favor Of the said defendants. Because, the
defendants having been jointly charged a
several and separate olfeuso ag2inst each il
anything had been proved.
The Court were Of opinion that the offences
as charged might be properly tried together
and without confusion or prejudice 10 the
rights OF the defendants, and SO decided and
charged aud overrulcd the notion and the de
PENDANTS excepted.
Evidence was then adduced ON the pant Of
the said defendants. wboroupon the Jury re-
tired sfter due Instructions, and returnec
verdict Of guilty as to the first three Of said
defendants, and not guilty as 10 said Aki
b. he Court, IN considering the question
here raised II is 10 be borne in mind that this
hlGueN IS NAhNAN AAl INA laultlANli va AllN nl1-
trict Justice, and was brought in i District
Court. Sec $40 Of the Civil Code prescribcs:
"IIc shall not be confined to forms nor shall
he be compelled in any case TO preserve any |
other record Of his proceedings than the mere |
conclusion, determination or Judgment at |
which he may arrive.
The accusation is not made 10y Indictment |
Ii arrested on q warrant the substantial oiiense /
is stated therein, but the charge is made more /
explicit as 10 the time aud place, and tho |
special statute or statutes which have been /
violated, verbally 10y the Sheriff OF other pros
ccuting officer. The warrant Of arrest and /
the magistrates certificate Of appeal sent up |
with the record in this case arc an example Of /
the above. The warrant charges "thc otienso |
Of having IN possession opium or preparation
Of opium The charge on tho Magistrate
record is Charged with the oitense Of having /
opium on their persons, ON Che Sd day Of De-
coubcr 1851 at Pahala, kau, Hawaii, prose-
ouled under Chapter IS Of the Laws Of 1874
with the amendments Of 1876 and l550"
The warrant docs not charge tho ofionse as
either Joint on several The charge made in
Court implies a several ofeuse by the phrase
opium on their perBons, each person is
therefore charged with having The possession
Of opium The parties sevorally plead guilty. |
The testimony all relating TO the Same lime
and place and ~ the same transaction although
touching several persons, these persons were
tried at the same time They were seyemlly
convicted and aovemlly took appeals to tho
Circuit Court.
If there had been au indictment there
would have been apt words 70 describe tho
oifenso as the prosecution presented it BY the
testimony but without an indictment il Is left
to appear by the testimony as we'll 40 by the
nature Of tue act charged, whether, there be-
ing several persona accused, they are charged
with joint act or several acts. II 10 always
within The power Of the defendant Oh defend
ants on going to trial to call fer an explicit
charge IN any respect, II appears very clearly |
in this case that the several defendants were
found at The same time 10 one house, each 10
possession Of a separate parcel Of opium As
the testimony was the same story, &c was giv0n
but once as TO an the defendants. But The
circumstance Of an the defendants being at
once before the jury does not make an ofouse
which was several % joint oiiensC. Ii is easy
to suppose a case when lot Of opium might |
be in tho loinl possession Of sundry attend
ante but that is not the case at bar. Four |
defendants were put on trial, The Jury found
.hat three OF Them we're seyerally guilty Of
The ollense Of having the possession Of opium
If these defendants before the trial had moved
lot a separate lIldl ana bhONU LuaL tue Justice
ll the case required il, it wonld have been
granted them. but not then asking it,, 1t is not {
afterwards ground Of exception
The arguments made by counsel and the
lrecedents cited relate 90 indictments These !
arc necessarily more formal than tho riCa rocc
,haggc made before magistrate They OK
Jressly include all that is necessary to make g
he oacusc, and they exclude proof Of what Z
.vor 10 NOS charged by their terms. Nothing c
S taken by iutendment But in tho case At n
iar it is rather claimed as We understand, that
he Ufeusc was treated as joint ofcnso, d
while the proofs showed that il was several.
The only ground for this view is that the trial :
vas united This is not making the oiicnse
oiut. Tho charging words imply seyeralty,
nd the form Of trial does not affect this
Vbcu several arc jointly indicted for an ohenso
which may be committed by one person or by
cycral, the indictment is considered by law
s several indictment against each, aud one (
Jay he convicted aud lhe rest acquitted Arch !
rim. Plead. and Prac. vol. I p. 507 aud note
Exceptions ovorrulcd.
G.. Brown, Deputy Attorney General; W h
aslle for Defendant.