Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1900-12-20

medicine after The revocation Of the
~ nao II not denounced nor IL there
In penalty attached 10 H. n IN true.
a remarked h, Judge bartlett M col.
ftar W.. fassott 1893 ~ Y. 22i. that
o. case has brother. yet the case
" ~ uarto MrNulty ~ Cal. iGt. n ns
N Ike the case NJ bar. both NJ .o
d facts and the law undor which t
sought to sustain the conviction.
pei Do IA possible Tor two eases arising
= different Jurisdiction To be. In
b case. MrNulty obtained the 70.
a. fitc license for the practice ~
licinc In the State Of California.
W ich license was subsequently re-.
W ed for unprofcsainnal conduct He
tlnrcd TO practice his profession
1f'ar the revocation ~ his license and
non being convicted and sentenced
n tho Superior Court Of the City and
comfy " San Francisco obtained his
u charge In the Supreme Court Of
- 'ifornia on hah.as corpus. ttha court
ic 'ding--seven Judges on the bench
Dr dissenting-that as the statute
or ~ made II an offense to practice
"v'itnout having first procured cor
u"cate. ana provided no penalty for
pr'cticing after the revocation OF tho
certificate. such conviction could no;
be upheld.
was argued that the case Of this
d. 'endant was clearly within the mis-.
chiefs intended to he prohibited by the
legislature. am inclined to think so
to-: but I can not find this defendant
gritty of crime bv construction.
The statute under which this prosecu a.
ti0n Is based is penal-highlv penal IN
IT, provisions. II provides for heavy
fine. and logically results in forever
prohibiting the defendGn. from pIac-
ti'ing a profession to which he has
welded MANY Of the nn;t years Of his
career. That such statutes are to be
construed strictly against IN offender
and literally In his favor Is proposi.
tion which ! have never heard disput-
ed. To determine that case Is with
In the intention Of a statute. it's Ian.
GRACE must authorize MS to say So
II would be dangerous. indeed to car.
ry the principle, that n case which Is
within the reason or mischief of n
statute Is within its provisions. so far
as to punish crime not enumerated
In the statute, because ~ Is of equal
atroc.,y. or of kindred character
with those which are enumerated "If
this principle" said Chief Justice Mar.
shall. IN the United States vs.. Wilter.
berger, Wheat. &c, has ever boon
recognized In eXpounding criminal
law, II has been In cases of consider.
able irritation, watch It would be un.
safe to consider as precedents forming
a general rule" See United States VS..
sheldon. 2 Wheat l19.
Courts in constituting statutory of.
lenses have always regarded II as
their plain duty cautiously to keep
clearly within the expressed will II
the Legislature. lest otherwise they
shall hold an act or omission to be n
crime. and punish II. when in fact the
legislature never so Intended "If this
rule is violated" said Chief Justice
Best, the fate of the accused person
is decided by the arbitrary discretion
Of the judges and not by the express
authority Of the laws" Fletcher VS..
Lord Sondes. 3 Bing. $50.
II will at once be conceded that no
man should be stripped Of very valu.
able property and consigned to igno-
my and reproach unless II be very
clear that such high penalty have
he has committed. ut Is more conso-
nant to the principles Of liberty" says
an eminent English Judge. that n
court should acquit when the legisla-
ture intended to punish. than that II
SHOULD punish when II was intended to
discharge him with impunitv." See
United States vs.. CLAYTON, 2 Dill. 219.
The Attorney General evidently re-
allied the difficulties presented bv this
case for In drawing the Indictment +"
did not follow the language OF the
s .atute and charge the defendant with
having Dracticed medicine without
having first obtained" license. but
he charges him with practicing medi.
cine without having a license so TO
do" whereas there Ii no such offensc
created bv the laws of Hawaii.
find that there IL no law authoriz.
ing the conviction Of the defendant IN
this case and II will be my duty when
and 10 often as he Is prosecuted under
n similar state OF facts. to discharge
him by the appropriate process OF tho
court.