The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1888-05-01

ton. and it seems to me that where
parties are charged with fraudulently
and feloniously conspiring to remove
and deal with dutiable goods upon
which no duties were paid or were
intended to be paid, there can be no
severity in constituting the law accord
ing to its obvious meaning The ex-
ceptional cases referred to by counsel,
when dutiable goods may be legally
removed from the Custom House
without the payment Of duties, are
properly grounds of defence, if such
circumstances exist.
The second count charges a con
spiracy to do what is obviously and
directly wrongfully injurious to the
Hawaiian Government, in depriving
it of certain of its legal revenues,
which are defined to be duties upon
imported and dutiable goods.
It is urged by defendants counsel
that no offence Is charged here be
cause it is not alleged that what was
intended to be done was intended to
be done unlawfully. The answer to
this Is. that the statute does not re
quire such allegation, but sets forth
that q conspiracy is q malicious or
fraudulent combination. and as the
count charges a fraudulent combina-
ton it is within the statute: more
over. the second count does not, it
appears to me, intend to charge a
conspiracy TO commit an offence but
a conspiracy to do what is wrong
fully injurious to the Hawaiian Gov
ernment, or as has been above ex-
planned, to commit an injury for
which only civil action might lie;
according to the latter part of the
statutory description of conspiracy,
the allegations bring the count with
in the statute.
The latter part of the second count
is objected to as vague and indefinite,
not showing whether a statutory of
fence is meant or whether it is merely
a carrying out of the description of
the first part of the count 1t is clear
to me that it does not intend TO make
a distinct charge from the first part
of the count or to charge conspiracy
to commit a statutory offence, but
that it is part of the description of
the injury charged IN the first part of
the count
1t is strongly urged as an objection
to the whole indictment, that it
charges a violation of the revenue
laws and therefore should allege that
less than six months had elapsed
since the discovery thereof, to give
jurisdiction. The charge of conspir-
acy against the defendant, which is
the gist of the offence, is certainly
not violation of the revenue laws,
and whereas no overt acts are charged
in the indictment as to the revenue
laws, l cannot see the application of
this objection.
As to the objection that the indict
ment does not agree with the charge
made at the examination for commit
tai, it has not been shown to the
Court what such charge was, and /
do not feel that an issue has been
fairly raised upon that point
l confess to having met with diff
culties in the examination of the
various questions which have been
raised by counsel for the defense
upon demurrer, but / have not been
able to adopt their theories in regard
to the legal character of this indict
ment; my natural anxiety lest may
not have done full justice to-the able
and exhaustive arguments of defend
ants counsel is materially allayed by
the fact of the opportunity given
them by the statute for a rehearing
before the full bench upon excep-
tions.
For the reasons above set forth, the
is overruled.
SANFORD B. DOLE.
April %, 1885.