The Hawaiian gazette., 1893-10-31

dsncs." Thompson on trials, Sec
243. This is only an application Of
the general rule that the right tc
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, il
the defendant shall present any evil
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 Repeats by implication are
not favored. Sutherland, Statutory
Construction, Sections 138, 14S, 152.
The exceptions to the refusal of
the Court to give to the jury certain
instructions requested by the de-
PENDANT, 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 a fact), chat 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 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 a
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 intent on the part of defendant to
import the opium alleged to have
been found in a 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 intent the Court
charged the jury as follows: GAS
regards the question of intent, it is
the law that in criminal n 9tters there
10 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
to have been imported.
= In regard to intent-it is
question Tor you to find from the evil
ierce and from the facts produced
the defendant imported this
opium. If man imports
'ases of goods and in those cases are
,ontraband forbidden goods, prohib-
ted goods, and it is unexplained, it
s question for the jury whether
here was any intent on his part to
IMPORT those goods" This instruc-
ion, (which embodies the first in
itruction requested by defendsnt),
covers all that is contained in the
bird requested instruction. Instruc-
ions need not be given in the form |
if as given they correctly |
tate the law and cover the ground. |
Req .. Ahop, 7 Hsw. $50; Rer .. Corn
oeII, Haw. 154.
The second requested instruction,
10 far as it relates to the question of |
ntent or knowledge, is also covered |
" the instruction given by the
Jodrt, and in so far as it is not Gov
rcd by the instruction given, it was
refused. 1t would tend to
cad the jury to think, enormously, |
hat the defendant must have known
#, or consented to, the placing of
he opium in the case, while it would
,e sufficient, if be afterwards, but
,rior to its seizure, learned that it
vas there. It would also tend to
i've the jury an erroneous impress
ion that the fact that opium was
ound in a case of goods belonging
o, and consigned to defendant,
7ould under no circumstances war.
art conviction, and that the knowl-
dge or consent of the defendant
hight not be inferred from the I'M
-plained presence of the opium in
ne of his cases, but that it must be
hown entirely by some other evil
ence, as by some positive words or
cts proved to have been uttered or
one by the defendant and directly
1-1r1ol..z |