The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-04-19

beng evidence to show that the de-
PENDANT was merely TO receive anu hfa
already received per cent comm'S
sion on the money collected by him.
In August, 1891, the defendant
Cbinaman who understands Eng
lish, arranged with the manager of
the Pepeekeo Plantation, for job of
clearing a certain piece OF land OF
about eightyfive acres in extent
of its natural growth so as to
be fit for blowing. The price
was to be $50 per acre. The defend
ant told three Cinnamon named Fook
Lock, Lum Hin and Wong Lum that
he could get such contract for them.
They looked at the land and author
lied him to make such contract for
them and agreed to pay him a COM
mission of five per cent. for his SER
vices in obtaining the contract and
for acting as middleman between
them and the plantation during the
progress of the work. The contract
was made in writing between the
plantation and defendant, and the
three men, taking in others with
them, went to work and completed
the clearing of 81 acres in about six
months. During the progress of the
work orders for Chinese provisions
were made by one of the three part
ners on Chinese storekeeper, the
goods supplied and the price of these
as well as the rice and tools furnish
ed by the plantation were to be de-
Quoted from the contract price OF
$50 an acre for 81 acres which
amounted tt, $2610. The defendant
drew the money and settled some of
the claims, but did not pay the bal
ance, whichis claimed to be $1,000.
over to the slsree men above named
who called themselves the contract
ing s'hui." Che jury found the de-
PENDANT guilty of embezzlement at
the last January term OF the Circuit
Court for the Fourth Circuit.
The matter comes to this Court on
exceptions to the verdict as being
contrary to the law and the evidence.
The position taken by defendants
counsel is that the defendant was a
partner in this transaction, and was
Interested in this fund to the extent
of his five per cent. commission, and
therefore could not be guilty of EN-
bezzlement, for a man cannot EN-
bezzle his own money That there
never was a segregation of the re
spectiVe interests of the partners and
the appropriation of the general fund
OF the partnership.
The prosecution offered in evidence
three pieces of paper with Chinese
writing on them; these were identi
fed by the witnesses as coming from
the defendant. When the witness
Lum Hin was shown the one writer
on brown paper marked exhibit "a
he says "Len Tai gave me this, ant
that was written in Tong Chong'
place and given me there" WheI
asked who wrote it, he says "Len Ia
wrote it; that was the balance shee
drawn up by Len Tai and given te
the book-keeper; Len Tan gave it tS
me and I gave it to Fook Lock.
The paper is also identified by Fool
Lock as the paper he got from Lun
Hin; he also says 81 know it is Lei
Tai's handwriting;;" he also testifie
as to the contents of the document
We have had Mr.. LII Cheung, til
official Court interpreter give US
translation of these Chinese docu
ments. Exhibit "a" is statemen
of account furnished by defendant
it shows that eighty-seven acres o
land has been worked for $3.50; thel
an item eighty-nine days work fur
nished by the plantation at $22 pc
month, SIS; then an item of $3.50 TO
commissions, these two items max
ing a total of S205; then comes
memo. "When you have receive,
this paper, please deduct this amour
and after deducting it the remainde
is to be divided. Saturday is tn
day fixed for pay. No other news
Again, the provisions are not il
cluded in this statement" Thi
agrees very closely with the transls
ton of this paper given at the tria
The item of $75 is explained in til
evidence of Fook Lock, as being til
amount paid by the plantation t
some Japanese to complete the wor
according to the contract, and had t
be deducted from the $2610.
Exhibit "Bn dated December g.
1891, is bill from Quong Foo
Lung to Len Tan camp, for good
and provisions furnished amountin
to $685. 2a. Exhibit "BP date
January %, 1892, is bill frol
Quong Fook Lung to Len Tai cam
for goods furnished S73.S5 an
account rendered $398.72a tot
$472.579. These two bills oil
not receipted. This eyidens
stands uncontradicted; these doc
ments at once remove the propositic
or contention that defendant was
partner with these other men; b
own written statement shows him
be middleman or agent; he charg
his five per cent. commissions on Il
amount to be received for the wo
done; he even includes and charg
commissions on the S75 that "
paid TO complete the work to the 8;
isfaction of the plantation. The ia
that the name of the ahui'' was 81
Tai Camp" does not make Len Il
the defendant, partner in the b.
Section l, Chapter Is. of the Per
Code, defines embezzlement as f
lows: "lf any person who is entrust
with, or has the possession, cont
and custody or keeping of thing