The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1891-04-21
Exceptions are overruIed

OPINION OF THE COURT BY M'cULLY, ].
The defendant was tried at the
November Term, 1890, of the Third
Judicial Circuit Court, on his appeal
from a conviction in the Police Court
of Hilo, Of the offense of selling
liquor without license. The liquor
in question was keg of wine sold
to a Japanese, and the defense was
that the defendant was merely an
agent or servant of the Hawaiian
Wine Company of Honolulu, or of
f. 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 part of the bill of exc ptions.
IT, first exception is tal;ou 20 the
instruction to the jury that the de-
PENDANT claimed to act as the servant
of 4. Brown, who was a licensed
dealer in liquors, but the license of
said Brown is not produced in evi-
dence. Under the statute you must
find the defendant guilty" The
statute referred TO is Section IS Of
an Act concerning the sale Of spirit
nous liquors, fonnd at page 699 Of
the Compiled Laws, viz, "In all
proceedings against any persons for
selling or allowing to be sold any
spirituous liquor without a 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
Is 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, IN
der penalty of a fine. We are of
opinion that it would not be com
mon sense construction of these laws
to hold that a icensee should not
take his license down from its 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 a 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 a rule of evidence.
The objects of the two statuteo are
not inconsistent but concurrent,
namely in both cases to shew that a
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 Grown 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
designated store in Honolulu, does
not authorize Gaspar to sell or de
liver such liquors in Hilo.
2. If Gaspar delivered this keg of
wine to the japanese in Hilo and
collected the money for if then, that
is a sale within the meaning of the
law, and any license to Mr.. Frank
Brown does not protect defendant.
And the defendant asked for the fol
lowing instruction, If the jury find
that at the time of the sale of the
keg of wine to the japanese, the de-
PENDANT was the servant Of licensed
dealer, having no interest in the sale
and delivery except as such servant
and that the defendant in the course
of his employment sent an order for
said wine to the icensee who for
the wine to the defendant to
be delivered they will acquit," which
requested instruction the Court re-
FUSED TO give.
There is some confusion &C lang
lage in the latter instruction The
first part of it imports that lie de-
fendant admitted that he had sold
the keg of wine. He does not admit
50 much. He does not claim that
1nder spirit dealers license for
Honolulu branch stores can be main
aimed or that persons can be au-
,horized or employed by the licensee,
1t other places than his licensed
place of business, to make sales, IN
Ter the protection Of his license, of
goods sold, charged or consigned
generally to such agent or servants.
We may say that sales so made
would bein plain contravention OF the
intent and effect of dealers spirit
icense." These licenses are among
hose which are subject to special
police restriction. They are issued
or a designated locality. They are