The Hawaiian gazette., 1889-03-05


0l-s n tie Coayt pa PRESTON.
This case comes before the Court
upon exceptions from a pro lorna
decision Of the Circuit Court for the
Third Judicial Circuit in banco over
ruling exceptions taken by the de
PENDANTS By way OF appeal upon points
IF law. from decision Of Hon. :. l..
Austin, Circuit Judge. sustaining q
conviction Of the defendants by the
District Justice OF Hamakua.
Il was stipulated between counsel
for the crown and for the defendants,
thar the exceptions should be heard
Epou the record rs presented on the
appeal TO the Circuit Court.
From this record il appears that on
the 18th July. ISIS, the defendants
were charged ION appeaN before the
said Circuit Judge, with selling
spiritueu> liquors from January LIST,
ISIS, TO and including April nth, lSSS,
particularly under Section b Of Ses-
sion Laws OF lSS2. Is amended by
Chapter III, Sec. /, of the laws OF
1856 and after hearing evidence the
defendants were adjudged guilty and
Were severally sentenced TO one
months Imprisonment ut hard labor
and 10 pay fine OF fifty dollars and
costs, and certain spiriCuOus liquors
which had been seized and the vessels
ana utensils used for containing the
same were adiudged TO be forfeited,
and ordered 10 be sold on account Of
the Hawaiian Government.
From the evidence il appearS.that
The defendants were StorekeeperS car
a
wall. and that on the 9th OF April last,
several packages of merchandise adj
dressed To the defendants were landed
frou the steamer lwalani M the HO-
nokaa landing That Mr.. Lyman,
the deputy sheriff, went TO the land
ING with a search warrant, to search
for opium, said TO be concealed in the
freight of the defendants, and told de-
PENDANTS that he had such warrant,
that defendants denied having amy
opium. and told the deputy sheriff he
might search the g0Ods,-the deputy
sheriff. deeming ii 70 be difficult TO
search the boxes ut the landing, told
defendant. All Cock, he would cart
them To defendants store and open
them thereon some of the cases be-
ing opened q quantity of samShOO was
found, the deputy sheriff told the de
PENDANTS that he would take charge
~ the LIQUOR. and told them 10 20 TO
the landing and be would see how
much more liquor they had, the boxes
were opened and further quantity
Of LIQUOR was found. amounting in the
whole with what had been found in
the boxes opened at the store 10 two
hundred and seventy bottles and jars.
Evidence was also given by the
t-ookkeeper at the landing, that on
three occasions between the first of
January and the ninth Of April, sew
5ral packages of liquor had been re
ceived by the defendants.
These are the only parts OF the evil
dencg which we deem it necessary to
notice, and we are unable to see, how
in any manner ii tends to support the
charge made.
The Section 81 Of the Act regulat-
ing the sale OF spirituOUS liquors, re-
lied upon, Is a. follows:
ANY District or Police Justice, the
Marshal, his deputy, or any sheriff,
deputy sheriff, or constable may,
without warrant seize and take away
All such SpirituOuS liquors Is he shall
have reasonable cause TO suspect Is
Carried about for sale, or to be exposed
q offered for sale lin any highway or
footpath, OF in any booth, tent, store
or shed, or in any other place what
ever. by any person not licensed 10
sell the same, and all vessels ana
utensils used for containing drinking
on measuring the same. And such
Justice. on proof of such OtfenSe, may
convict auy person 30 offending, and
NAV thprcupOn sentence such offender
30 nav fine Of not more than two
bundled and fifty dollars, and not
les than tfftv dollars, and TO ImpTis-
oument at hard labor FOR any term
not more than six months and not
less than one month, and one-haf Of
the tine shall be paid TO the party
--iB gave the information which led
IS such conviction, and such Justice
shall. upon such conviction adJudg7
-uch spirituous liquors. and the YES
sels and utensils used for containing,
drinking or measuring the same, 10
T. forfeited. and may direct the same /
~ BE- sold on account Of the Hawaiian /
Eovernt. Provided, however, that in |
ali cases where such liquor Is seized |
while being carried on the way from
one place to another, the burden OF /
proving that such liquor was not car |
RED for sale or 10 be exposed or offered |
for sale, shall be upon the person or |
PERSONS owning or claiming the same
This section 1t viii be seen only
appIies 10 cases where spirituOus
LIQUOR l. carried about for sale, or to /
fe offered or exposed for sale, and not /
TO the sale Of the liquor itself The |
liquor must DC carried about, and /
from the wording OF the provisO, /
while being carried on the way from /
one place to another" it would seem /
that ii Is necessary the liquor should |
be actually in transit, and not a in 1
this case. merely landed on the beach, |
and we do not consider that liquor IN 4
transit from the merchant to the con- 1
signee or purchaser, Is being carried /
about within the meaning Of the |
statute
The charge was selling spirituous |
iieuer. particularly under Section 3 1
fmeaning Section 3 Of Chapter I
NLIN.l OF Session Laws Of 1852, a /
amended by Chapter LFI., SECTION l, Z
Ia the laws Of 1855" A conviction l
IT z selling could not be upheld I'M 1
Rer this Section. and even if it could, /
Fhe sentence would be erroneous, as /
4rsFx-n fine rould be imposed for sell i