The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-04-22

man, l Mason 499; Kohne V. Ins. Co.
! Wash. c. c. 165; U. S. V. Steamboat
Forester, l Newb. "a. In this case
the evidence is ample TO show that the
opium was brought from Victoria &c
Keau voluntarily and with intent tC
land it there. Our own statutes also
show that the meaning of the term
! importation was not intended TO be
confined to the introduction of goods
into ports of entry. True, lawful i'm
portation Is so limited. but unlawful
importation may take place either al
ports of entry or ports not of entry
Section 526 of the Civil Code expressly
refers to goods imported" ''dt dny
! other port in the Hawaiian Islands
I than port Of entry' and imposes a
penalty for such Importation. And in
the statute under which these defend
ants are charged, which is not a rev.
enue statute but strictly prohibits
the importation of opium or any prep
aration thereof into the Hawaiian Is
| lands,' except by the Board of Health
for medical purposes, the word ''impor-
! tation" was used evidently in the sense
| of bringing in" and with an intention
on the part of the legislature TO pro-
/ hibit any introduction of opium, ex-
| cept as aforesaid, into these islands at
| any port or place whatever, whether
| of entry or not.
1t is contended in the second place
| that, even if an importation were
shown, the evidence is not sufficient to
! implicate the several defendants.
AS against Anderson (the master)
and Gale the evidence is so overwhelm-
ing as to need no comment.
AS against the others the case is
not so clear, but on the whole and bear
ing in mind that the question before
this Court is not one of fact, whether
the evidence showed guilt beyond a
reasonable doubt, as it was before the
District Magistrate and would have
been on general appeal to the Cir
cult Court, but one Of law, whether
there was sufficient evidence to support
the judgment, we are of the opinion
that there was such evidence.
Assuming that the men did not know
the purpose of the expedition before
they left Victoria, but that they shipped
on a voyage of several thousand miles
in a vessel of only 81 tons register and
with no apparent object except to carry
a few small cases of cargo, without
first inquiring into the nature of the
enterprise, or, if they did so inquire,
that the master deceived them, and that
he ventured on this long voyage and
hazardous undertaking without first
assuring himself that the men could
be relied upon to assist him in the eX
ecution of his illegal purpose, still there
can be little doubt that the men be-
came aware of the object in view be-
fore they reached Keau, for the vessel
was a small one (only about fifty feet
long,, the opium was the only cargo, it
was in plain view in the hold which
opened directly into the cabin and dur
ing the voyage it was taken from the |
% cases in which it was shipped and
re packed in So cases, the master and
crew apparently intimately associated
together and that too in the cabin as
we'll as elsewhere, the voyage was di- |
rect to these islands and to Keau, an
out of the way place. These facts are
sufficient to support an inference that
before reaching Keau the men knew
of what the cargo consisted and that
it was intended to be unlawfully landed
there.
With presumably this knowledge,
they assisted in bringing the schooner
to it's anchorage at Keau and there
waited quietly on board a day and a
night for Gale who had been put
ashore apparently to arrange for land
ing the opium. Gale having been ar
rested and told that boat would soon
arrive from Honolulu to capture the
schooner wrote to the master to get
away and return in about fourteen days,
evidently having, no thought but that
the men were of a mind willing to
serve further in the prosecution of the
enterprise, and when they were found
ON board by the officers they were to-
gether with the captain in the stern |
appearing satisfied with their situation
and had nothing to say by way of eX
PLANTATION. At the trial also no at
tempt at an explanation was made nor
did it appear that it was not easily in
the power of the defendants to furnish
an explanation. While no inference
prejudicial to one accused can be drawn
from his neglect or refusal to give evil
dence on his own behalf, yet where the
evidence for the prosecution is such as
to throw great suspicion upon him, his
failure to produce or to endeavOr to
procure for production evidence which
would explain his position or the facts
casting suspicion upon him, when, so
far as appears, it is within his power
to do so, may properly be considered
in passing upon the question of his
guilt. See Prov. Govt. V. Gertz, 81
Haw. 293.
Judgment affirmed.
w. o. Smith, Attorney-Genera for
prosecution; Hartwell, Thurston &
Stanley for defendants.
Honolulu, April II, 1896.