The Hawaiian gazette., 1918-05-14
COURT SAYS ATTACK.
ONl.AIW FRIVOLOUS
Judge Vaughan Denies Attorney
Davis Motion 70 Set Aside -
"fRichard's Sentence -" !.

Frivolous is the way Judge Horace
Vaughan refers to the efforts Of At
torney George Davis to get the SEN
tence imposed upon J. J. Richards, for
mer chief steward Of the Shinyo Maru,
for an attempt to smuggle ashore
twelve tins of opium, set aside upon
the principal grounds that the federal
opium statutes do not apply to iHa-
waib Timp0r tatioIss5 - = JF
This Tefsrenee Is made in a Judge
ment filed yesterday which denies n
motion to set aside a sentence of one
year and one days imprisonment and
n $500 fine imposed upon Richards. 1
"a startling discovery" is the
courts comment upon the claim Of
the attorney that the federal opium
act passed by congress is unconstitu-
,tionalya. 49, r
Inathe syllabus to the decision it is
stated, re the criminal law on appeal
and error: "a r.
"Writ Of error does not lie to re-
view an order of a district court de-
nying. q motion to set aside the SEN
tenee, and to arrest judgement, where
the grounds of such motion are wholly
unsubstantial and frivolous objections to
the indictment, and the defendant was
permitted waive arrangement and plead
guilty, for the first time raised in said
notion AZ
Reviewing the efforts of the lawyer
to get the Richards sentence set aside,
and outlining the efforts taken, the
court said in the decision: 3r
1.-THE motion Of the petitioner to set
aside the sentence against him and per-
nit him to file a motion in. arrest Of
judgement, which he styles a motion to
strike sentence was denied on May 1.
On the second Of May, he presented
his assignment of errors and his pc
gtition for writ of error seeking to re-
view the judgement rendered against
him. .1 sd d.. ',H.iE
There was no exception to the in
dictment; there was none to any Of
the proceedings until after the sen.
tence had been pronounced. The de-
PENDANT pleaded guilty. At the time
set for assessing his punishment and
pron0uncing sentence. against him he
appeared with a lawyer, both pleading
for mercy; after the court had assessed
against him sentence lighter than he
deserved, his lawyer orally moved ia
arrest the judgement; and the excep'
ton to the action of the court in de.
.nyiug this oral d m otion was the first
to any Of the proceedings in the ease.'
|, A previous decision of the court in
the same case held that in effect, the
first grounds presented for the Settling
aside of the sentence was that because
the Indictment does net allege that
the opium was imported from some for
Aeign country II does not charge that
/ II had been imported into the United
States. The court holds that the in
dietment does 50 charge. It is suff
cient though IT, does not allege the
name of the country from which the
opium was imported, not that it i.
unknown. From 1whatexef country il
eame,7 if after. April first, 1899, lit wa!
uniawfully rimporteds"s - o.. ..
The contention that the opium aet
as passed by congress was pnsOnsti
tutioIai because II finvades the pow
err of the territorial Legislature, which
? is exclusive, to legislate- upon the sub
ject and to control and regulate the
buying, selling, purchase and receipt
of smoking i0pilm and opium prepared
for smoking in the Territory .of ,Ha
wall" is referred to by the court al
ga startling discovery, and of al
unsubstantial and frivolous charac
ter's ; 4 / E"EE t%'t
In all there were eighteen grounds
in the motion to strike the sentence
pronounced against the defendant, nom
of which the court evidently though
merited much consideration.
l.l 49, w A. a. -