The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-04-16

| OPINION OF THE COURT BY M'CULLY, J.
The defendant was tried at the
November Term, 1890, of the Third
judicial Circuit Court, on his appeal
from conviction in the Police Court
of Hilo, of the offense of selling
liquor without license. The liquor
ID question was keg of wine sold
to Japanese, and the defense was
that the defendant was merely an
agent or servant of the Hawaiian
Wine Company of Honolulu, or of
+. Brown, the manager, receiving
orders for their goods, forwarding
the orders and receiving and deliv-
ering the articles ordered.
The evidence is joined to and
made a part of the bill of exceptions.
The first exception is taken to the
instruction to the jury that " the de-
PENDANT claimed to act as the servant
of +. Brown, who was a licensed
dealer in liquors. but the license of
said Brown is not produced in evil
dence. Under the statute you must
find the defendant guilty" The
statute referred to is Section 35 of
an Act concerning the sale of spirit
uous liquors, fonnd at page 500 of
the Compiled Laws, viz, I'm all
proceedings against any persons for
selling or allowing to be sold any
spirituous liquor without license
such person shall be deemed to be
unlicensed unless he shall at the
hearing of the case produce his
license" Against this positive stat
ute prescription, the counsel for the
defendant cites Act which is Chapter
20 of the Session Laws of 1890 which
requires all persons holding license
for any class of business to keep it
exposed to view in some prominent
place on the licensed premises, un-
der penalty of a fine. We are of
opinion that 1t would not be com
mon sense construction of these laws
to hold that a licensee should not
toito hf5 ffceEse down from It's place |
In his store and carry it into Court
when the exhibition of it there is re-
CURED in his defense upon a charge
of misdemeanor in selling without
such license. In the possible case
of his being prosecuted under the
latter statute, it would be reason
able defense that he was at the time |
IN question exhibiting it in Court.
BY no manner of construction does
the latter statute repeal the former
statute, which is rule of evidence.
The objects of the two statuteo are
not inconsistent but concurrent.
namely in both cases to shew that q
party is carrying on business under
a license.
This instruction of the Court was
therefore correct, and upon this
alone the verdict might have been
sustained. But the other position
taken by the defense should be dis
cussed and settled in this case.
The counsel for the Crown re-
quested the Court to give the follow
ing instructions which the Court
gave.
l. The license granted to the Ha-
waiian Wine Company for Frank
Brown to sell spirituous liquors at a
designated store in Honolulu, does
:, .o' ou0hOAiAo odSpdr 10 sell or de
liver such liquors in Hilo.
z. Ii Gaspar delivered this key of
wine to the Japanese in Hilo and
the money for it then, that
Is a sale within the meaning of the
aw, and any license to Mr.. Frank
Brown does not protect defendant.
And the defendant asked for the fol-
owing instruction, If the jury find
hat at the time of the sale of the
reg of wine to the Japanese, the de-
endant was the servant of a licensed
lealer, having no interest in the sale
md delivery except as such servant
md that the defendant in tie course
# his employment sent an order for
aid wine to the licensee who for
the wine to the defendant to
'e delivered they will acquit," which
instruction the Court re-
used to give.
There is some confusion of lano-
age in the latter instruction. The
rst part of it imports that the de-
endant admitted that he had sold !
ne key of wine He does not admit
0 much. He does not claim that v
nder a spirit dealers license for +
t,.l