The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-11-17
OPINION or THE COURT BY WHITING. J.

OPINION COURT BY WHITING J.
Ia the circuit the defendant quan the convic-
ton and of the district court also filed demurrer
10 the charge OF the oec The motion and the de-
ovcrulcd But the charge amended in the circuit
by inserting the word 'mawfulIy so that the charge
against the defendant in the court was having opium or
preparation thereof U"LqT in possession at IIanlei
District Of llanac Island of Kauai Republic of Hawaii
9Th day OF February 1899 against the statute in such case
made and provided"
The amended charge objected by defendant INSULT
and compliance with the statute and motion to
luah denied The defendant duly excepted The ground
II the demurrer that the charge against the defendant is
insufficient in form and substance in either by
law charged against the above named de-
tuant Ah Ycc Also that the exceptions the statute must
hc specifically ncsavcd in the charge of the ofrense
The defendant claims that there the mean
of the charged proven: statute creates the
cfeu~c and sets what shall constitute it, and
must h. alleged in the charge. That the makes the
efen-c "f having opium possession without certificate of
hc Board of Health duly authorized physician
PENDANT claims that th,, ought be specifically ncgatved
charge of the otfcnsc
Statute relating To opium:
Penal L. See The importation of opium or any pre-
garaou thereof into the Hawaiian Islands, except as authorized
~ Section 1854. hereby strictly prohibited; and whoever
aII import, sell, give furnish opium any preparation
vuted IN Section 1854, shall I've liable penalty of etc
=. L. See, 1854 The Board of Health may time to
nnc import such quantities OF opium or preparations thereof
the said Board shall deem necessary for medical purposes the
Hawaiian Islands, and shall furnish it price any phys
having diploma certificate from med
a college university and who has license practice med
the Hawaiian Islands, also the person in charge of the
medicines the Lcper Settlement Mooka, be used
rusvely medical purposes And The said board may also
furnish to the captain surgeon of vessel bound to
foreign port for on board of such vessel"
p H. See 1888 Amy person who shall have in his posses
opium, preparation thereof which he shall have
received from the Board of Health, from duly licensed
physician surgeon prescribed in Section 1854, shall forfeit
such opium preparation thereof the government and the
shall be seized and delivered the Board of Health and
such person shall be liable to penalty Of etc.
The rule usually announced that exceptions and provso in
she cnacn clause OF the statute must be negaivcd and such
the enactng clause need be negave the latter
6cne of defense. 10 Ency P Il Pr 49,
But the more accurate that only exceptions and
visos need be ncgaved as are descriptive the ofense
the position of the exception provso 10
Fpev Pl l. Pr 1917 n , If the exception affords only matter
# excuse defense need be negatived Id p. 49S.
whenever exception contained III the section defining
oense and constitutes part of the description of the
enSe the indictment negative the exception otherwise
ofcnsc charged estate Neck Il Mo. 351 State
ShfIe 20 415l. But where the section which defines the
contains prov eXmptng class referred to- from the
operation Of the negative the
but exemption therein contained must be insisted by
If defense by the party accused state OBricn Il Mo-
$40 State a. OGorudn 81 Mo- 1S9 10 Am. Eng Ency. 453.
In Heru L. State, Tex 722 the defendant charged
With having rctailel Sprituos liquors in quantities less than
mari contrary 10 the statute etc The statute provides that
any person shall sell or be in anywse concerned in selling
sDrtuou liquors quantities less than quart without first
avine obtained license therefore,, The court held that
fen. was charged; that the words without license having
been obtained necessary part of the charge to constitute
,h, ofcnsc thc reported III support OF
1iis vicw-I
IN C,w , Jc,pipqx. 121 Mass a. Graz C. J.: ID a
eaeral rule pleading that when exception proviso Is
embodied in clause which defines the oensc, it Is
monty called the enacne clause it must be negatved IN the m
mcn but that if it only found in subsequent distinct
clause of the same another statute it need be negaved
Getting Har,rcH Pick 49, Conn = HaIt IL Cush
100 COM r. Sheffield Cush. 11S.) : :" : The case
pnors 70 us 10 fall within what Mr. Justice Metcaf Ill the
losing paragraph of the opinion in Com mart, called an
rlcalir: Is aleGc