The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1893-03-27
COURT CHRONICLE.
Mandamus on Magistrate I'M
portant Decision in the Criminal
Law.

and approved the final accounts of
j. NJ. Monsarrat, guardian of William
Lindsay, and ordered the discharge
of the guardian.
j. $. Emerson has filed his report
as commissioner to sell real estate
of the late Peter Pedro, i'll the case
of Malakiale Pedro and five other
Pedros against Maria T. Garcia.
His commission was to sell the land
for not less than SiOO, and he re-
ports having conveyed the land,
situate at Kamananui, Waialua, to
\. j. Lopez for that amount, and
files a bill of expenses amounting to
Sl4l.5O for approval.
WRIT OF MANDAMus.
Antonio Ferreira Serene sued for
a writ of mandamus to require j. H.
S. kalco, District Magistrate of
Hama, Maui, to certify up his appeal
against conviction or show cause for
not so doing. Tho petitioner was
fined 500 and $40 costs by respon-
dent on August 13, for selling spirit
uous liquors without license. He
alleges that through his attorney, A.
w. Kaai, he perfected an appeal to
the Circuit Judge at Chambers, de-
posting 500 in lieu of appeal bond,
but that the said District Magistrate
failed to certify up his appeal and
transmit the papers to the said Cir
cult Judge. On Jan. ii petitioner
applied to respondent to have the
appeal sent up. which the latter re,
fused and offered to return peti
TONER Si.1O costs. This Serene de-
clined and applied for the writ a:
stated. Chief Justice Judd ordered
the writ of mandamus issued, return
able this morning. The hearing wa:
postponed till tomorrow. Chas
Creighton appears for petitioner.
IMPORTANT DECISION.
Judge Whiting has filed decision
affecting several criminal prosecu
tions and upholding an importan
principle. This decision is all TIN
more interesting from its being con
trary to one rendered by the sam
Judge at the late term of the Firs
Circuit Court. The reason for th'
change appears below, being simpl.
that vital point now pleaded wa
not raised in the former case.
All Hum was convicted in the Po
lice Court of maintaining a lotter
on July 10, 1892. He appealed ant
: his case came before the late Circui
term. His counsel moved that tn
charge be dismissed on the groun
that there was no law then in fore
under which he could be tried, cor
= victed or sentenced. The defendan
{ claimed that the lottery act of 1S9
, repealed section 3 of chapter fl {
the laws of 1856, under which h
was charged; that section % of tn
1 Civil Code did not apply to the cast
j, and that the law of 1892 increase
the punishment, making it ex pos
o facto and retrospective. and there
fore unconstitutional
J. Sec. % of the Civil Code referre
to is as follows: "Any suit or pro
secution pending at the time of til
repeal of any law, for any oifens
: committed or for the recovery {
any penalty or forfeiture incurre
g under the law so repealed, shall
Il The prosecution contended tn;
S the law of 1892 did not repeal IL
a law of 1886 and .sswas not in contli'
Il with it; that the law of 1892, beil
: contrary to public policy, was u
T; |; constitutional aud void, and did NJ
. affect by repeal or otherwise al
!. existing statutes on the subjec
Il and, admitting the repeal Of the la
G of 1856, then section % of the Ci,
e Code is a general saving clau
II which provides for the prosecute
q of the defendant under the repeal,
l; Act Al of 1886.
Il The penalty under the Act Of 1S
II was $500; that under the Act
= 1892, not more than 5000 nor lc
than $500.
The Act of 1892 has been repeal
by Act 6 of the Provisional Cover
II ment. Later the Provisional &c
,r ernment passed an Act prohibitil
re- gaming and gambling, with a pc
n atty of $1,000 fine or imprsonme
ks not exceeding one year. No 81
pending was affected by this law.
* The Court states that in the ca
" of All Foo and Ng Chin, for opir
a in possession, the question of t
is saving clause in the Civil Code W
be not raised, and it was decided tt
the effect of the repeal of a statl
Mt imposing penalty would preve
N, any prosecution, etc, for any otTei
he committed against it while it was
,e, force. A California case is, he
III ever, cited, where the Court, on
he hearing a case was shown saw
clause not pleaded before, and {
cided that a general saving clause
as efficient as special clause inse
ed in particular statute. In
ire same case California; the JUG
on stated that in a number of Sta
at there is general saving clau
ro- His Honor also quoted Judge Ha
tie we'll from the Hawaiian Reports
OF a similar decision under the saw
30 clause for civil cases (section 22).
ad As he was Of opinion that t
his prosecution was within the provis
in that "a prosecution pending at
an time of the repeal of any law
'lr. any Otfense committed under
he law so repealed shall not be ailec
he by such repeal and as the Acts S
sequent to that under which del
dant is charged do not show any
in tent of the Legislature to afl
su- pending prosecutions so as to
5he them, the motion for discharg
will overruled.
nes w. O. Smith, Attorney-Gene
lIs. and A, NJ, Brown, Deputy, for
ma prosecution; A ,. hartWell Tor