DISSENTING OPINION OE
MR. JUSTICE McCTJLLY.As dissenting in respect to the conclusions of fact from the opinion of the Court, I deem it proper to state briefly my view of the case. The important condemning fact which attaches the guilt of confederacy with the Chinamen to one or more officers of the ship is, that the thirty-six loaded sticks were all among the wood used as dunnage. The argument which is so strongly put by the Court, would lose its basis if the opium sticks had gone with the wood on deck or had been found scattered among the deck load, under the hatch, or in the dunnage, for it would not have needed the help of the ship’s officers to let them go as they might, on and off the ship. But it seems to me (1) quite within the chances of things that the loaded sticks should have all gone to the same part of the ship, it being likely that they were brought in one load; and (2) that it is not clear that it was desirable to the principals in the smuggling venture that their particular sticks should go below. The wood which went below, and particularly if to be used as dunnage, must receive rougher usage. *334In throwing it down, stowing it and pitching up, it would be subject to more chances of splitting, of scrutiny and generally an accidental discovery. I do not think that the chance of its passing to the wharf and being carted away would be so good for the dunnage as for a deck load. There would be greater danger that a few of the loaded sticks should be left at last, and it would not do to inquire for the missing sticks of wood. The danger of jettison would not be taken into account in such a voyage as may be expected between San Francisco and Honolulu in a matter which was all a risk. If the scheme of the operation was that the shipment should go as common firewood, it would not be aided by stowing the valuable sticks below. The form of the disguise was to be its protection, and the less the variation in its treatment from honest cargo, the better the chance of escaping detection. I cannot draw an inference that these men were over cunning, and took in an alien confederate to divide the profit for aiding to do what was of such very doubtful value to the venture.
I am furthermore drawn from the opinion that the mate, likewise the Captain were partners in the attempted smug gling by the failure to enter the wood on the cargo book, and afterwards on the inward manifest. It does not appear likely that men accustomed to Custom-house formalities would have omitted such simple routine entries if they had possessed a guilty knowledge, and had an interest in the shipment being passed along beyond the point of danger without unnecessary inquiry and obstruction.
I am forcibly struck by the discrepancies in the statements of witnesses with themselves and with each other. If I could assume them guilty, unless they could prove themselves innocent, I might agree with the majority of the Court, but clear proof that any officer was concerned in the smuggling, I do not find, either in the testimony or in the circumstances of the transaction.
Honolulu, August 27, 1880.