The Queen v. Ah Hum

• Decision Date: 05 April 1893
• Citation: 9 Haw. 97
• Parties: THE QUEEN v. AH HUM.
• Court: Hawaii Supreme Court

9 Haw. 97

THE QUEEN v. AH HUM.

Supreme Court of Republic of Hawai'i.

April 5, 1893.

DECISION APRIL 14, 1893.

EXCRETIONS.

Syllabus by the Court

The defendant had been convicted in July last of a violation of Chapter 41 of the laws of 1886 relating to gaming, and appealed. In the Circuit Court, First Circuit, to which the appeal went for trial, he moved to dismiss the charge on the ground that the Act of 1886 had been repealed by the Lottery Bill of January 13th last and specifically by Act 21 of the Legislature of the Provisional Government on March 7th last. Section 12 of Act 21 prescribes that pending prosecutions under the repealed law shall not be affected by the repealing Act, and Section 23 of the Civil Code is in general terms to the same effect;

Held that the prosecution of defendant should be proceeded with under the Act of 1886.

Attorney-General W. O. Smith, for prosecution.

A. S. Hartwell and A. P. Peterson, for defendant.

JUDD, C.J., BICKERTON AND FREAR, JJ.

OPINION

JUDD C.J.

On the 15th of July, 1892, the defendant was convicted in the Police Court of Honolulu of violating Section 3, Chapter 41, Laws of 1886, by managing or conducting or assisting in the managing or conducting of a lottery known as Che Fa, on the 10th of July last. He appealed, and on the 23d of February last he moved the Circuit Court, First Circuit, to dismiss the charge made against him on the ground that there is no law in force under which he can be prosecuted. The motion was overruled by Judge Whiting, presiding, and exceptions thereto are now brought to this Court. At the time of his conviction in the Police Court the Act of 1886 was in full force and effect. But while this motion was before the Circuit Court, and before its decision, the Act of 1886 had been specifically repealed by Act 21 of the Executive and Advisory Councils of the Provisional Government, approved on the 7th March last.

There being no question that the Act of 1886 is now repealed by " Act 21, " it is unnecessary to discuss the question whether it was previously repealed by implication by the Act of January 13th, 1893, entitled " An Act granting a franchise to establish and maintain a lottery, " the so-called " Lottery bill."

Act 21 is entitled " An Act to prohibit gambling and gaming, " and has a saving clause in Section 12 as follows: " No suit or prosecution pending for any offense committed or for the recovery of any penalty or forfeiture incurred under any law heretofore enacted shall in any case be affected by the passage of this Act."

Section 23 of the Civil Code, under the caption " Of the repeal of laws, " is as follows: " No suit or prosecution pending at the time of the repeal of any law, for any offense committed, or for the recovery of any penalty or forfeiture incurred under the law so repealed, shall in any case be affected by such repeal." Both of these last above quoted sections are in effect the same; the former being specific and the latter general.

It is contended by defendant's counsel that the provisions of neither of these two sections are sufficient to now authorize a trial and conviction under the repealed law of 1886.

We hold, following the case of the United States vs. Reisinger, 128 U.S. 401, that " under the general principles of the common law, the repeal of a penal statute operates as a remission of all penalties for violation of it committed before its repeal, and a release from prosecution therefor after said repeal, unless there be either a clause in the repealing statute, or a provision of some other statute, expressly authorizing such prosecution."

But without doubt if the repealing Act discloses the manifest intention of the Legislature, that notwithstanding a general saving statute, all prosecutions under the repealed Act should thereafter be at an end, the particular intention must prevail. It is objected to thus giving effect to general s...