The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-04-28

A decision OF the Court IN BancC
was fled yesterday in the case of The
Queen VS.. All Hung. The defend
ant was tried under the section o.
the Act of 'S8, which makes il
penal for anyone to land or attempt
to land on Hawaiian shores with
out permit issued to himself in
accordance with the provisions Of
the Act. Judge Hartwell and w
r. Castle appeared for the defend
ant Deputy Acknowledgement fol-
the Crown. Judge Dole, before
whom the case was tried sustained
the decision of the Police Court
against the defendant, and this de
cision is again affirmed by the full
Court. In order to give the public
q clear idea of the points of law
raised, we subjoin the main portion
of Judge HartwelPs brief. The full
text of the decision will follow to-
morrow.
1. The defendant is held to be
guilty of the offense of having sat
tempted to land in this kingdom
without personal permit to enter
the kingdom"
The facts shown are insufficient in
law to justify the finding that such
offense was commenced without this
kingdom and consummated within
it." The facts as set forth in the
decision amount to this:
Defendant arrived here on the Bel
gle last March and was placed in
quarantine, showing a permit upon
leaving the Belgic to come ashore,
which was not officially inspected
until the quarantine was over" when
the permit which he presented twas
refused by the Custom House au-
thorities." There was evidence on
the question whether ''the permit was
issued to him personally or had been
issued to another and transferred to
him." during its inspection the de-
PENDANT telling the officer, "that he
procured the permit in China, and
that it was given to him there by
some person"
But these facts do not tend to
show, still less do they tend to estab-
lish beyond a reasonable doubt, the
fact that the defendant was not the
person for whose personal use the
permit was granted, or that in using
the permit he was falsely personal
ing another. Any Chinese in China
can by correspondence with his
friends here procure permit for
himself, which by necessity would be
given to him there by some person.
Such is the only course for those to
follow who have left here without
procuring a return permit as we'll as
for those who have never been here
The Court held that the defendants
failure to meet or deny the evidence
of his telling the officer that she pro
cured the permit IN China and that il
was given to him there by some per.
son." is decisive of the facts that he
procured it illegally, and that he was
not the person for whom it was
issued, that it was Illegally given tc
him, or procured for him, and that in
using it he was falsely personatine
the person who was entitled to it. Al
these facts are found by the Court on
the evidence above named, and are
made use of by the Court in reaching
It's opinion that the offense charged
was commenced in China and con
summated in Hawaii.
The facts, we submit, do not au
thorize such conclusion. They are a:
properly reconcilable with the de
PENDANTS innocence as guilt" ant
therefore he was entitled to &C
quital. "a party accused shall b.
presumed innocent; and in case hi
guilt is not satisfactorily shown, b.
acquitted Section 6, Oh. H., Pena
Code.
The learned Court does not, il
support of It's conclusion, refer to tn
provision in Section C. of Chapte
so, Acts 1888, which in the case
therein named, require a defendan
to 'show affirmatively that he pos
sessed and presented valid pei
nit" On the contrary, at the argU
ment, it was intimated by the Court
that this provision is not applicabl
to the present case.
The presumption of innocence
then, and the ordinary rule that th
prosecution must afirmatIvely shov
the defendants guilt, is unchange
by any statute throwing upon tn
defendant to prove a legal permi
He shows permit, which, as til
prosecution claims, was issued, nc
to him, or for him, for some one els,
to enter the kingdom The burden
on the prosecution to show this, an
it has failed to do so. 1t Is not
prima facie case against the defent
ant. to show merely what is recited
the decision of the Court.
If the facts shown were sufhciel
to establish, even prima facie, Il
invalidity of the permit, it does n
follow that the defendant was gull
of any criminal intent or act by pr
curing in China an invalid perm
l. g., permit which on its face
authority for some other person
enter this kingdom.
There is no presumption of law
of fact that a foreigner residiI
abroad knows Hawaiian laws.
was on this doctrine mainly. til