The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1900-09-12

The defendant charged with he oense of violating Sec
ton $40 of the Penal Laws 1891 Honolulu Island of Oahu
January 25h 1900 by being found the premises of one g.
Bolte by night without lawful excuse and after trial.
found guilty
He excepted to the charge of Circuit Judge to the Jury
also to the order everything his motion for trial
Section $40 of the Penal Laws 1891 under which the prose
cuton was brought, reads as follows:
Any prostitute, any person who is ewd, wanon
acviou in speech behavior any person who has
visible lawful insufficient of support who
waner abroad or places himself in any public place to beg aims
any child do; who soc collects aims
trbutons under any false petese who practices hoopopo
hoounau hoomanamana preend to have the
of praying DEATH who preend to tell fortunes for
other reward who has in his possession without law
full he proof of which shall be upon such per-
som any false skeleton key any of houserea
ing; who found by night dressed disguised with felon
ious intent who found 10y night without lawful he
proof of which excusha be upon such person. upon any
Westinghouse other buildings any enclosed yard,
board any vessel who dangerous dsorery person by
of his being oer dstuber of the peace going Of
ensivey armed uttering threatening speeches.
otherwise shall be punished by imprisonment at hard labor not
than six MONTHS
While there conflict the evidence, the testimony
tends support the following of facts That Mr. c. Bole
resident Of Judd Honolulu had number of Asatc
his employ; that these together with Chinese fish
with the and knowledge of Mr. Bole occupied
building the premises Servants quarters that the defend
January 25t ~ d. 1900 without the permission of Mr.
Bole, called the servants at o'clock in the
evening for the purpose Of collecting 800 due him from of
the occupants the Chinese fisherman, who also the defend
ants partner in business enterprises that the money
collected and defendant fingered to talk over business and social
until about $3.50 O'Clock; that the defendant then
afraid of being robbed he returned his home and
the invitation Of Of the occupants of the tenants quarters
stayed night and on the following morning returned his
house and aerwad arrested for violating the above
statute.
The charge Of the Circuit Judge excepted by the defendant
as follows, to-wt
Mr.. Chingwortls argument has clearly shown what
apparent before that the issue ds largely of law
There is very little that Is be determined by YOU The
section of the law which applies correctly read of
counsel in this What lawful is for the
Court to determine That is a matter of law.
The granting of the permission by the Chnaman defend
sleep the premises without Mr. Boe permission the
said Chnaman himself having authority give such perms
sion the defendant would constitute lawful under
the circumstances of this Moreover that time it
fact that there Board of Health regulation existence hay
ing the force of law orddng any person changing his place of
abode without permit that the defendant the time in
sleeping the premises fact engaged violation OF the
law.
he excuse that he offers then is not a sufficient excuse under
the law and the only question of fact for YOU determine upon
the evidence whether has been shown your satisfaction
that the defendant did sleep those premises that night
of You believe from the evidence of the witnesses for the
prosecution that he did, you believe the defendants
admission that he did, then you must find him guilty The
theory upon which you acqu him that YOU dbeeve the
evidence entirely
While it apparent from reading of $40
which the charge is laid that this Statute enacted
multitude sins or ofenes by Legislature
tended remedy many wrongs it does appear, do
think was intended by this section to declare simple epas
to be an ofense and punishable as msdemeanor.
Excuse said Wiles j.. is either authority a
able belief in authority, The QHecn Hdrrey Crown Case
Reserved. Vol. /, p. 2sG.
ndcr this definition the phrase without lawful excuse,
used in section $40, would without lawful authority
reasonable belief in lawful authority If the defendant had
full authority reasonable belief in lawful authority for being
the premises the alleged and had either lawful author
W reasonable belief lawful authority for remaining there
night he is guilty of the offense charged.
The defendant upon the premises shown by the ev
dcnce for perfectly lawful purpose. lie had right cal
upon his debtor for payment of money due and by night,
necessary Then having gone upon the premises for Lawful
purpose he there without lawful and being
righfully the premises had he lawful authority
reasonable belief in lawful authority for remaining there
night the invitation of who rghtful occupant the
u house!
We think he had and that the Circuit Judge erred in holding
l and nstrucng the Jury otherwise
The defendant charged with violating regulation
Of Health does the record whether
u he held permit from the health authorities, permitting him t.
change Ibis place Of abode That part instructions rela
tive the regulation Of the Board of Health not seem
pertinent any issue in the and think should hav
been omitted.