The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1888-04-23


legal revenues, by false pretences
and with intent to defraud, and to
commit an offence against the laws
of the Hawaiian Kingdom, to wit,
the offence of gross cheat. One of
the statutory definitions of gross
cheat is as follows: "Who-
ever shall designedly, by any
false pretence, and with intent
to defraud, obtain from an
other any money, goods or other
thing of value, is guilty of a gross
cheat" The false pretence and in
tent to defraud being alleged in the
indictment, it seems to me that the
offence is sufficiently brought within
the statutory description; the omis-
sion of the word "designedly" is
immaterial, because intent to de-
fraud implies design.
i find in the statute of conspiracy
another support to the first count:
one of the instances given in sec.
first of the statute, of what matters
and things may be objects of con-
spiracy is the following: ITO cheat
another by means Of false tokens
and pretences. Now the first
count clearly alleges a conspiracy to
cheat the Hawaiian Government of
certain of its revenues by false pre-
tences.
But is argued by counsel for the
defendant that the word "another'
in the statute OF gross cheat, may
not be held to apply to the Hawaiian
Government. l have no difficulty
in holding that it may so apply,
under the authority of Chapter /,
sec. 6 of the Penal Code. The Ha-
waiian Government is representa-
tive of the public or the nation and
the words have about the same
technical character as the word
king" when used as the plaintiff
in public prosecutions in this coun-
try or the word "People" as SINH
larly used in the United States of
| America.
A further objection to the first
count, is that the removal Of the
goods in question without paying
the duties that were due on them,
was not cheating the Government of
its revenues, as cheating by our
statute is obtaining something by
| false pretence, etc, whereas no
revenues We're obtained from the
Government, none having been col
lected by it. 1t seems Ito methat this
| is going outside of the count, there
being no allegation which informs
the Court of the manner in which it
was intended to carry out the cheat
| or whether the intention was to de-
| prive the Government of revenues
already in its possession or to pre-
vent it from collecting revenues due
it.
A ground of demurrer is made
against the third count, in that it
states that the defendant conspred
with A. b. Haley, that the defend
| ant should commit an offence, and
counsel argue that a conspiracy of
two, that one of them should COM
nit an offence is not within the
statute. The 4th section of the
statute of conspiracy recites that
"the act Of each party to con-
spiracy, in pursuance thereof is the
act OF all :" which seems to me to
be sufficient answer to that point.
A further ground of objection
against the third count was that it
should have been alleged that the
goods in question were TO have been
unlawfully removed; but / lind that
the statute has been closely followed
in describing the offense.
| 1t is further argued by counsel
for defendant, that the statute il
question, is only intended to refer
to goods that have been smuggled
but the statute is so general in It's
statement that it admits of a very
wide application, and it seems to me
that where parties are charged will
fraudulently and feloniously con
spring to remove and deal will
dutiable goods upon which no dutie:
were paid or were intended to bt
paid, there can be no severity il
constituting the law according to it.
obvious meaning. The exceptiona
cases referred to by counsel, wher
dutiable goods may be legally re
moved from the Custom House with
out the payment Of duties, are pro
perly grounds of defense, if suci
circumstances exist.
The second count charges n con.
spiracy to do what is obviously and
directly wrongfulIy 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.
1t is urged by defendants counsel
that no offense is charged here be.
cause it is not alleged that what was
intended to be done was intended tc
be done uniawfully. The answer tc
this is, that the statute does not re,
quire such allegation, but sets fortl
that conspiracy is "malicious OF
fraudulent combination," and as thC
count charges fraudulent combina
ton it is within tile statute; more
over, the second count does not, i
appears to me, intend to charge
conspiracy to commit an offense bu
a conspiracy to do what is wrong
fully injurious to the Hawaiian Gov
ernment, or as has been above ex