The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1888-09-11
In the Supreme Court of the Ha-
waiian Islands-In Banco. July
Term, 1888.
The KING VS.. LUM Hume.

JUDD, @. J., NJ GULLY, PRESTON, BlCkkBTON
AND DOLE J. ].
Opinion of the Court by BTCKERT0N,J.
The defendant was charged in the
Police Court, Honolulu, on Deem
Der 10, 1887, with violating Section
5 of Session Laws of 1886, Chapter
Kill, by having unlawful possession
of tools, devices, implements or
tickets to play Pakapio, a banking
game, in Honolulu. on or about the
18th inst; this being Lum lungs
second offence" On the 29th OF
December, 1887, he was found guilty
and sentenced to pay fine of $500
and to be imprisoned without hard
labor for three days and to pay costs,
The defendant appealed to the Su-
preme Court and the case was tried
at the April Term, 1888, resulting in
verdict of guilty. The defendant
was sentenced to Imprisonment at
hard labor for two months and fined
$500 and costs, and the matter now
comes here on exceptions to the YER
diet, the refusal of the Court to
charge the jury as requested by de
fendant, and the denial of motion
that the jury be directed to return a
verdict of acquittal.
BY THE COURT: The bill of excep-
lions sets out the charge made in
the Supreme Court, as follows, ''Yio-
lating Section 5, Chapter Kill, Act
of 1886, in a house on Beretania
street, near Kaumakapili Church on
or about 18th December, 1887, in
Honolulu" This we understand
and take to be the charge, it is so
stated by counsel, and so allowed by
the presiding Justice in the bill of
exceptions; it is a general charge
under a certain section which reads
as follows:
"Section 5. Any person who shall
have unlawfully in his possession
any tool, device, implement or ticket
used or which can be used for the
drawing, carrying on or playing at
any lottery, game of faro, monte,
roulette, lansquenet, rouge ct noire
or any other banking game played
with cards, dice, or any device shall
be punishable by fine not exceed
ing five hundred dollars for the first
offence, and for every subsequent of
fence by fine not exceeding five
hundred dollars and Imprisonment
with or without hard labor not ex-
ceeding three months, and such tool,
device, implement or ticket shall be
forfeited and destroyed"
The charge being general, it ad
mitted of evidence being introduced
showing that these tickets, etc, could
be used for the carrying on of
lottery.
1t was not a specific charge as
made in the Police Court, where it
was particularly specified that de-
PENDANT had violated that section
"by having unlawful possession of
implements, tickets, etc, to play Pa
kapio, banking game" We think
the defendants counsel might have
objected to the charge made, as be
ing uncertain and not sufficiently
specific, but we do not find that any
such objection was made but that
defendant went to trial under the
general charge of violating the said
section
We are of opinion that if the charge
in the Supreme Court had been in
the same terms as that made in the
Police Court, the exceptions would
have been well taken and they would
have had to be sustained and the de-
fendant discharged, because there
was no evidence to show that Paka-
pic was banking game.
The evidence shows clearly that
defendant not only unlawfully had
in possession tickets used for the
drawing, carrying on or playing at
lottery, but that he dealt in, and
sold them. 1t fully substantiates
the charge made, and warrants the
verdict; in fact, We cannot see how
the jury could arrive at any other
verdict than that of guilty on the
evidence as set out in the bill of ex-
ceptions before us.
The conviction must stand, and
the exceptions are overruled.
a. P. Peterson, Acknowledgement,
for the Crown; W. R. Castle for the
defendant.
Dated August 3, 1888.
concur in the foregoing decision
with the exception of the conclusion
stated in the paragraph beginning
with the words We are of the opin-
ion that if the charge in the Supreme
Court had been," etc. l am not pre-
pared to adopt this view, nor do 1
think it essential to the decision of