The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-10-31

4
close belongs to the party upon
whom rests the burden Of proof. In
view of the former express statute
above quoted and the general rule OF
practice, an intention to change the
order of argument should be clearly
expressed in the later statute. The
statute in question provides what
shall be the order of argument, Z" if
the defendant shall present any evi-
dence," but is utterly silent as to
what shall be the order, if he shall
present no evidence. So far as the
statute goes, it is not in conflict with
the earlier statute. The Court can
not read into it words that are not
there, and which, if inserted, would
be inconsistent with, and therefore
operate as a repeal of the earlier
statute. Repeals by implication are
not favored. Sutherland, Statutory
Construction, Sections 136, 14S, 152.
The exceptions to the refusal of
the Court to give to the jury certain
instructions requested by the de-
fendant, and to the charge as given,
and to the verdict as being contrary
to the law and the evidence will be
considered together. The instruc-
tions refused, being the second,
third, fourth and fifth requested,
were as follows:
2. The fact (even if the jury be-
lieve it to be fact), that opium was
found in case of goods belonging
to, and consigned to defendant, will
not of itself warrant conviction, but
the jury must be also convinced from
the evidence, beyond a reasonable
doubt that such opium was placed
there by the act, conniyance, knowl-
edge or consent of the defendant.
Unless such act, connivance, knowl-
edge or consent of the defendant
appears from the evidence beyond
reasonable doubt, the defendant
should be acquitted.
3. The intent of the defendant is
an essential feature in the proof of
this charge. He cannot be convicted
until the prosecution has adduced
evidence to convince the jury not
only that opium was imported, but
also that its importation was accom-
plished in pursuance of the purpose
and intent of defendant
4. There is no evidence before the
Court in this case tending to show
an inteut on the part of defendant to
import the opium alleged to have
been found in case of goods be-
longing to him.
5. There is no evidence that the
steamer Australia" in which the
opium in question is claimed to have
been imported, arrived at Honolulu
from any foreign port or country.
On the question of intsnt the Court
charged the jury as follows: Gas
regards the question of intent, it is
the law that in criminal n Itters there
N 1st be a criminal intent and you
must be convinced beyond reasona-
BILE doubt that the defendant was
knowingly and wilIfully a party to
the introduction into this country
from abroad of the opium herein
charged to have been imported.
In regard to intent-it is a
question Tor you to find from the evil
derce and from the facts produced
the defendant imported this
opium. + = If a man imports
cases of goods and in those cases are
forbidden goods, prohib-
tied goods, and it is unexplained, it
is question for the jury whether
there was any intent on his part to
import those goods" This instruc
tion, (which embodies the first in
requested by defendant), |
covers all that is contained in the |
third requested instruction. Instruc-
lions need not be given in the form
if as given they correctly |
state the law and cover the ground. |
Rer .. Atop, Z Haw. 556; Rer .. Corn
oez, 3 Haw. 154.
The second requested instruction,
so far as it relates to the question of
intent or knowledge, is also covered
oy the instruction given by the
Court, and in so far as it is not COW
srsd by the instruction given, it was
refused. 1t would tend to
Iead the jury to think, enormously,
hat the defendant must have known
of, or consented to, the placing of
he opium in the case, while it would
De sufficient if be afterwards, but
prior to its seizure, learned that it
vas there. It would also tend to
yive the jury an erroneous impress
lion that the fact that opium was
'ound in case of goods belonging
o, and consigned to defendant,
would under no circumstances war
art conviction, and that the knowl-
,dge or consent of the defendant
night not be inferred from the un-
'-plained presence of the opium in
me of his cases, but that it must be
hown entirely by some other evil
lence, as by some positive words or
cts proved to have been uttered or
lone by the defendant and directly
howing knowledge or consent on
is part.
The fourth requested instruction
) open to the same objection: It
ontains an implication that the find