The Hawaiian gazette., 1893-10-31

to say whether there was an intent on
the part Of the defendant to import
the opium. The mere fact that
opium was found in case Of goods
belonging to and imported BY the
defendant is not conclusive evidence
of guilty knowledge or intent, but it
is primd fdeie evidence. It may be
rebutted. The evidence introduced
on behalf of the Government might
of itself in some cases be such as to
explain the presence of the opium
without casting suspicion upon the
defendant. or on the other hand It
might in some cases be such as to
throw very great suspicion upon him,
making it almost absolutely neces-
sary for him to offer evidence IN
rebuttal in order to clear himself.
According to the circumstances, the
defendant might in some cases not
be required to make any attempt to
rebuff the evidence for the Govern
ment as to knowledge or intent,
while in other cases, his failure to do
so would be more or less strongly
corroborative of the other evidence
against him. Where, as in this in
stance, the opium is shown to have
been in case o. goods imported by
the defendant, and no explanation
of this fact in any way appears, and
it does not appear that it was not in
the power of the defendant to procure
evidence exculpating himself, or that
any attempt was made to procure
such evidence, it seems to us that
the Court properly submitted the
question to the jury to find whether,
as an inference of fact, the opium
was imported with the knowledge or
consent of the defendant. See Cor
don rs. People, 80 N. Y. 500, and
Schooner Mary and Cargo, Gall. 209.
This, obviously, is not holding that
an inference prejudicial to the &C.
cused may be drawn from his neglect
to offer himself as a witness, or that
the presiding Judge may comment
upon the strength or weakness of
the evidence, but merely that he
may charge the jury that there is
evidence tending to establish spe-
cific fact involved in the cause, leav-
ing it to the jury to say whether the
evidence is sufficient to establish
that fact.
The fifth requested instruction
was also properly refused. There
was evidence that the steamer "Aus-
tralis," in which the opium was
alleged to have been imported, ar
rived at Honolulu from a foreign
port. Witness Sanders testified that
The steamer Australia" arrived in
Honolulu the 18th of last May. The
defendant himself, in his inward
entry, which was in evidence, signed
and sworn to by himself, speaks Of
tie goods, in one of the cases Of
which the opium was found, as en-
titled to exemption from duty, in
accordance with the provisions of
The Treaty of Reciprocity with the
United States of America" and as
imported in the steamer
whereof Capt. Houdlette is
Master, from San Francisco" This
8 an admission that the steamer
,ame from San Francisco, foreign
port. The very fact that an entry
vas made, and that exemption from
1uty was claimed was an admission
hat the goods were imported, for
10 entry is required. nor duty levied,
'or goods transported from one of
hess Islands to another.
The exception to the allowance of
IN amendment to the verdict was
abandoned at the argument.
The exceptions are overruled.
Attorney General w. o. Smith for
he Government; G. w. Ashford for
he defendant.
Honolulu, October 10th, 1893.