The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1870-03-02

therefor, and remarked: 3" Now you have caught
me, am heiod, [wrong)"
On refusal of the Court to order q verdict of
acquttal, the defendants counsel moved that the
jury be instructed: T" That there was no such
ofense as an attempt at distillation, and that ii
they found that the defendant prepared the ma
terials only, but never consummated the act BY
distillation, they will find him not guilty. Ex-
ceptions were taken to the refusal to give these
! instructions
ENCOURAGEMENT, S. H. PHILLIPS FOR THE CROWN.
l. The Court correctly refused to instruct the
jury to find a-vsrdict of not guilty. 1t is not
necessary to prove the corpus deficit by ocular
demonstration. 3 CIR. Ev., s30. aga altl
q There is such an offense as an attempt at
distillation Penal Code, Oh. A.
g. In some respects. it may be correct to say
that mere preparation will not prove the offense,
but in view of the party's confession, it is right
to assume that the jury must have been satisfied
that he had completed the act of distillation on
that very day-not of that liquor which, when
found, was incompletely distilled, but of some
more He was constantly engaged in the bust
ness. .5ICBpE4
W. C. JONES, FOR DEFENDANT.
81. The defendant could be charged and found
guilty of the act of distillation, and there was no
evidence of distillation, but only of p, eparation
to distill
2. There is no such otfense as an attempt at
dstllation, and the proof goes to show an at
tempt only. The ti-root beer had only COM
menced the process of fermentation and was
not in a condition to be distilled. No distilled
spirits were found on the premises; no beer in
the iron pot no fire lit; no process of distilla
ton going on and the only proof of preparation
was barrel of ti-root beer in the iDcipient pro-
cess of fermentation. Distiation was impossible
from the facts in the case. The expression. Of
the defendant, that he was Ae,ed, related to his
former acts Of dstilIation, for which be had been
fined. All the facts contradicted any presump-
ton of his present guilt. . /, asri X
g. The Act June %, 1859, is an amendment
of Oh. AZ, Penal Code, so as to make the act of
distilliug criminal, whether the article is manu-
featured for sale or private use.
HARTwELL, j.: The following is the statute
under which the complaint was brought srWho-
ever shall dist any spirits in this Kingdom, shall
be punished by a fine not exceeding one thousand
dollars, nor less than fifty dollars, and ip default
of payment of such fine, shall be imprisoned at
hard labor for a term not exceeding two years.
Oh. Al, Sec. 8, Comp. Penal Code, (Civil Code,
p 442) -
The statute concerning attempts is as follows
al. An attempt to commit an offense is some
act done towards committing, and in part .execu-
ton of the intent to commit the same. l.I $50
"S2 A mere preparation of the means Of CON-
hitting any offense, nothing being done in execu-
ton of the intent to commit the same, is not an
attempt to commit the same
"S5 Whoever attempts to commit an offense, |
for the punishment Of which attempt no special
provision is otherwise expressly made, shall
be punished" &c ID, Oh. A.
Under this, statute, the defendant might have
been convicted Of an attempt to distill if be had
been charged with that offense but be was not. |
1t was necessary that evidence, direct or ind-
infer that the defendant had distilled, or was in |
the act of disting- spirits On the principle that
a man is supposed to know the natural conse-
quences of his acts, courts have held that the |
POSSESSION Of all the means of committing an |
offense, such as bar-room, decanters, bottles Of
liquor, &C. in complaints for selling Intoxicating
liquors. were sufficient if unexplained, to convict
Com. vs.. Mahony, IA Gray, 46; Com. VS.. La
mere, II Gray, 3l9; Com. VS.. Dady, Allen,
53l. Where three sales were necessary to sup
port charge of being common seller of wines,
&c, evidence of one sale and of all the neces-
sary arrangements for selling and being prepared |
and ready and willing to sell to all who might |
apply. was suficientcfor conviction. Com vs.
Tubbs Cush, 2.
So with evidence that a house was fitted up for
the sale of intoxicating liquor to be drunk on the
premises, with evidence of persons resorting 20
the house and leaving it in such condition as to
leave no reasonable doubt that liquor was sold 10
them on the premises. To hold otherwise,
- would be equivalent to declaration that per-
son could not be found guilty of an offense such
as is charged against the defendant on circum-
stancia evidence only. But in criminal as in
civil cases, verdict may well be founded on cir
alone, provided the evidence of them
excludes every other reasonable hypothesis but
that of the guilt of the party charged" Bigelow
c. j., in Com, VS.. Van Stone, 81 Mass $50.
The English Statute 81, Geo. g. makes it
felony forany person to make, coin or counterfeit
my kind Of coin. not the proper coin of this
-ealm, nor permitted to be current within the
same but resembling" &c. A prisoner was taken
u the act Of making counterfeit shillings in the
ordinary way, by sleeping round blanks composed
If brass and silver aqua FORTS. No pieces were
ound in completed state but they, as taken
rom the liquor, looked ike lead. and would not
BASS for current coin by resemblance The ques-
ion whether the Statute covered this inchoate
,fense was brought before the judges, who held
hat the conviction was right. /, East p c.,
}, los.
We are of the opinion in this case that. it was
rot necessary to show complete distillation, but
t was enough to show that tie process was then I
-oing on. The jury undoubtedly asked them
elves what the prisoner tras doing if not distill-
ng spirit, and we're unable TO answer the ques-