The Hawaiian gazette., 1893-05-30
OPINION OF THE COURT BY BICkERToN, ].

The case came on for hearing a
the May term, 1892, of the Circuit
Court of the Third Judicial Circuit
held at Hilo, Hawaii, before the Chic
Justice and jury. After the close
of the evidence, the Court refused to
instruct the jury to acquit the de
fendant, as requested by defendant:
counsel, but instructed them to find
him guilty, "as, by his own admis-
sions, he had violated the statute,
Section 2, Chapter 81, of the Laws Of
1883, in procuring orders for spiritu-
Gus liquors, to be sent to Fl. Congdon
& Co., with the intent that the same
be supplied to these parties" Under
the instruction given, the jury, with
out retiring, returned verdict of
guilty. To the refusal of the Court
to charge as requested by defendants
counsel, and to the above charge as
given, exceptions were taken, and the
matter now comes here on bill of
exceptions. 1t appears from the
record that the charge against the
defendant was violating Section 2,
Chapter 81, Laws of 1888, at Hilo,
Hawaii, in January, February and
March, 1892" The evidence of the
defendant is as follows:
am employed by Henry Congdon
& Co. of Honolulu; this is their
license; my business is to collect on
this island and on Oahu, and l write
letters for what people want. l take
orders for them. This is power OF
attorney from Congdon to me. l write
letters for people to Henry Congdon
& Co.; have been in the employment
eight years. l have never received
or delivered any liquor; l write
letters for such people who don't
know how to write themselves. If
they know how to write themselves
of course 1 do not write for them. 1
wrote letter for Oliveira, he got his
wine, / have collected money from
him and the other witnesses. l know
Andrade, he came to me and asked
me to allow him to deliver the liquor.
told him l would write to my en-
ployer and let him know. Bills and
receipts are sent to persons who order
them by Andrade, to whom they are
sent with the shipping receipt. All
the packages are marked with and
directed to the names of the persons
who order them; 1 am paid a salary,
no commissions, and get no other
l am not interested in
the profit on the liquor; live in
Honolulu; 1 write letters for those
who order liquors; they send the
letters to Honolulu themselves. 1
never wrote for more than one IN
each letter; write a separate letter
for each one; they sign it. l have
written letters in English and in
Portuguese.
The section of the law under which
the defendant is charged is as fol-
lows:
at shall be unlawful for any
licensed peddler, trader, or store
keeper, or any bookkeeper, clerk or
of such peddier, trader or
except such as are
licensed to deal in spirituous liquor,
20 forward to any other person any
order for the forwarding, sale or
purchase of spirituous liquors, with
intent that such spirituous liquors
shall be forwarded, sold or furnished |
either directly or indirectly by the |
person or persons to whom such |
rider is sent or given, to or for the
lse of any person or persons other
han the person or persons who shall |
Onward such order."'
The question then is: Has the de |
endant admitted in his evidence any |
Ict done by him which would be
violation of this particular law? The
act of his being in the employ of
Jongdon s. Co., or that he collects
or them on Hawaii or Oahu, or that
lie writes letters to Congdon & Co.
or people who signed and forwarded
hose letters themselves, ordering
zine, or that he wrote to his
Employers asking them to allow
to deliver the wine to the
eople ordering it, does not make
i'm guilty of violating this law. In
ne part of his evidence he says: Il
axe orders for them;" this is ex-
lained in the latter part of his evil
ence; but nowhere does he or any
Their witness say that defendant for
Iarded any order for liquor If the
Nv provided that soliciting or pro-
uring orders for liquor is unlawful,
undoubtedly defendant would have
} be convicted under this charge;
ut it does not. We cannot change
ne language of the statute, supply
ant, or enlarge upon it IN order to
lade it suit certain state of facts.
Ve do not legislste or make laws.
ven where the Court is convinced
its own mind that the Legislature
ally meant and intended something '
ot expressed by the phrsseology of {
lie Act, it has no authority to depart '
ON the plain meaning of the Ian '
mage used. Il cannot doubt" says 4
ord Campbell, "what the intention
the Legislature was, but that in
ntion has not been carried into G
feet by the language used. al