The Hawaiian gazette., 1883-04-11
DEFENDANTS BRIEF.

The fscts shown by the prosecution do not
constitute or show criminal offence.
1t is the uncontradicted evidence that this
defendant is, and at the time of the printing Of
the pamphlet, was utterly ignorant of its mean
ing, and of the language in which it is uttered,
also, that the printing was done by the native
foreman of the printing establishment of which
the defendant is part owner, under circum-
stances which properly led the defendant to
infer that high officers of the Government de-
sired the printing for use on 4 public occasion.
The evidence further shows that the pamphlet
lraS used and circulated on that occasion, with
the Royal Arms impressed upon them.
The statute defines "ccmmon nuisance as
the "endangering Of the public personal safety
or health, by doing, causing or promoting.
maintaining or continuing what is offensive or
annoying and vexatious, or plainly hurtful to
the public, or is public outrage against COM
mon decency or common morality, or tends
plainly and directly to the corruption of the
morals, honesty and good habits of the people,
the same being without authority or justifca-
ton by law" Penal Code Chap. SO, sec. /.
The statute enacts the Common Law, that
"a party accused shall be presumed TO be in
nocent," also that "every one shall be pre-
sumed to mean the natural and plainly prob
able consequence of his acts" Penal Code,
Chap 2, sec. @ and Z.
The offense of committing 4 common ndi-
sance by printing an obscene pamphlet
md''lestiy tending 10 the corruption of the
morals Of youth or of morals generally" (which
is the language of the statutej is not commit
ted by one in utter ignorance of even its pos
sible meaning who could not ascertain its
meaning of his own knowledge, and had, on
the contrary, the best Of reasons not to sup
pose that there was the slightest improperly
There are are Common Law oifenses in this
Kingdom, these being defined by statute, as
doing what q penal law forbids to be done,
OF emitting TO do what it commands" Penal
Code, Chap l, sec. /.
If an act is an offence at Common Law, ire
spective of statutory Ingredients of the offence
charged, criminal charge, in Courts governed
by the Common Law, may be good, if it fail to
show a statutory offence. In this country
however, it is material to show a statutory Of
fence.
"In statutory offences there must be an evil
intent, though the statute is silent on the sub
ject. | Bishop Grim. Law, sec. 345. Watson
VS.. Hall, i6 Conn. POI.
The case of the Z. S. vs. Kirby, Z Wallace
1852, was one of prosecution for obstructing
the carriage Of the mails, by arresting the car
rier upon a warrant from State Court. The
Q. S. Supreme Court held it not such an OBJ
struction as was contemplated by the statute
and said, Field j.: "All laws should receive
a sensible construction. General terms should
be so limited in their application, as not to
lead to injustice, oppression, or an absurd con-
sequence. 1t will always, therefore, be pre-
sumed that the Legislature intended exceptions
to its language, which would avoid results of
f1,ss Tho e i. II
in such cases prevail over its letter" See
Barb. 2O3.
"A licensed tavern-keeper is not criminalIy
responsible for his bar-keeper selling liquor at
his bar on Sunday, without proof of an intent
on his part TO violate the statute. People vs..
Utter, IA, Barb l70.
An indictment for nuisance on premises is
net sustained by proof, merely, that the de-
PENDANT is the owner Of them. People vs..
Townsend, 3, Hill 479.
In an indictment for selling an obscene book,
a seieAte7- is necessary. Wharton's Grim. Law
sec. 297, citing Bennett g. Harold's Leading
Cases and several cases adjudicated.
A blind man, who cannot see, and has no
reason to suspect that he is selling an obscene
picture, cannot be held guilty Of a criminal
oifense in so doing.
The law of intent is stated in Bishop on
Crim Law, sections 3OI Ct seq.
ain the law of crime, the maxim is gaor-
anita fact ercnsai, Ignorance or mis-
take of facts is, in all cases of supposed
offense, sufficient excuse
ID. Sec. 302.-" Since an evil intent is an
element in every crime, any
such mistake of facts, as, happening to one
honestly endeavoring to discharge all legal
and social duties, shows the complained of
Act to have proceeded from no sort of evil in
the mind, takes from it its indictable quality.
A briefer expression Of the same thing is. that
D mistake of fac5, neither induced nor accom-
panied by any fault or omission of duty,
excuses the otherwise criminal act which it
prompts"
What is absolute truth no man ordinarily
knows. All act from what appears, not from
what Is. Ifpersons were to delay their steps