The Hawaiian gazette., 1888-08-28


AND DOLE, j..
Opinion Of the Court By McCuIEy, j.
This case comes up by appeal from
a Justice of the Supreme Court hold
ing what is known as the Intermedi-
airy Court of Oahu, upon the follow
ing certificate of findings and rulings,
viz:
"On the evidence adduced herein
I find that the defendant IN Hong
Kong, China, bought the passport
herein fled, and came to this King
dom on the steamer City of Picking,
and while said steamer was in the
port of Honolulu the 18th day of May
last with the defendant on board, the
defendant on demand presented the
said passport to a Custom House
officer, and afterwards was sent by
the Board of Health to the quaran
tine grounds near Honolulu harbor,
also that the defendant is China
man.
Wherefore 1 adjudge and rule
that the defendant is guilty as
charged, and that the sentence of the
police court herein is affirmed with
costs.
"From which ruling and judgment
the defendant appeals to the Su-
preme Court in banco, on the grounds
that the facts so found do not in law
constitute the offense charged"
The charge is of unlawfully at
tempting to land at the port of Ho-
noluIu without a legal permit, con
trary to the provisions Of Section 3
of Chapter rs of the Laws of 1887,
viz:
Section 3. If any master of vessel
shall land or attempt to land any
Chinese without such permit a per
NIT to enter the Kingdom issued by
the Minister of Foreign Affairs as
aforesaid, he shall be liable on convic
ton to penalty of two hundred dol
lars for each Chinese unlawfully
landed or attempted to be landed;
and such passenger landing or at
tempting to land, shall be liable on
conviction to penalty of fifty dol
lars, &c.
The passport filed is of date March
18th, 1885, and reads that permission
is hereby granted to All Firun Chi
nese characters !, formerly residing
at Waimanalo, Oahu, to enter the
ports of this Kingdom on his return
from China 1t is not doubted that
this passport would have legally ad-
mitted to the Kingdom the person to
whom it was issued. The defendant
had bought it in Hong Kong, and
was not the person named therein.
On this we hold, without question,
that for the bearer it was not pass
port By the regulation of March rs,
1884. under which it is expressed that
it was issued, passports were issued
only to Chinese residents in the
Kingdom, and desiring to go abroad
and return here, and 2 to the wives
and families of Chinese residents
here. For these passports fee of
one dollar was charged. This forbids
the construction that they were is
sued for the purpose of revenue. 1t
can only be held that it was for the
purpose of regulating and restricting
the entry of Chinese into this King
dom. This passport was permit to
the person named therein, who had
resided here at place specified, going
hence to re-enter the Kingdom. 1t is
altogether unlike passenger ticket,
which might be held to be assignable
as contract to carry one passenger
over a specified route for a money
consideration paid The passport is
not bought of the Government 1t is
issued only to a person who is of the
description of those to whom pass
ports may be issued, who thereupon
pays the official fee, which is for the
paper, not for the privilege.
The question then of this case is,
whether the defendant, being with
out permit to land, did attempt to
land.
The facts found of the purchase of
the passports in Hong Kong and com
ing into this harbor on board the
steamer, tend to prove an intent to
enter the Kingdom. On demand of
SuSGOu 41OuS6 OuICeG- ne presented
the passport to him. This is further
proof of an intent to enter the King
dom. AS far as possible the defendant
made use of the passport, and the
only use of the passport being to pro-
cure admission to the Kingdom, it
must be considered that the defend
ants intent to enter is established.
Our Statute on Attempts, Chapter
A of the Penal Code, prescribes that
amere preparation of the means of
committing an ofense, nothing being
done in execution of the intent to
commit the same, is not an attempt
to commit the same. Purchasing the
passport and taking passage for Ho-
nolulu was a mere preparation of the
means. The offense is landing, com.
ing ashore, entering the Kingdom, or
attempting to do SO. The defendant
would have committed no offense if