17 Haw. 487 | Haw. | 1906
OPINION OP THE COURT BY
This is an appeal from a refusal to issue a writ of habeas corpus on the petition of one Akamu, who was imprisoned upon his failure to pay a fine of $140 and costs amounting to $3 imposed upon him by the district magistrate of North Kona for selling spirituous liquor without a license.
Passing by the preliminary questions whether an appeal lies from a mere refusal to issue the writ, especially in a case in which by the terms of the statute the writ is not issuable as of right, and whether, if an appeal lies, it should be entertained when, as in this case, it does not appear that the petitioner is still imprisoned, and the time allowed by law for working out the fine and costs would in natural course have expired long since, we are of the opinion that the issuance of the writ was properly refused.
The second ground is that the imprisonment was to be at hard labor according to the terms of the former statute, which was amended so as to prohibit hard labor in cases of this kind by Act 33 of the Laws of 1905, which became law twelve days before the sentence was pronounced by the magistrate. Probably the magistrate had not then learned of the new law or ■else inadvertently omitted to strike out the words “hard labor” ■from the printed form of the mittimus. It does not appear, however, by the petition that the petitioner was subjected to hard labor in fact or even that the sentence or mittimus required hard labor. On the contrary it is alleged that he was sentenced to pay the fine and costs “or in default thereof to be imprisoned as by law provided,” which would mean without hard labor. There is, however, among the papers sent up what purports to be a mittimus in the case containing the words “hard labor.” Jf we may notice this, we must still hold that, the petitioner was not entitled to a discharge. The sentence, even if the -clause in regard to imprisonment is regarded as a part of it and not merely a declaration in the mittimus of what is required by law whether included in the sentence or not, is not abso
The appeal is dismissed.