The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-07-29

OPINION OF THE COURT BY JUDD, c. J
On the 18th of last March at Wal
luku, Maui, the defendant was takeI
into custody and taken to the Sheriff.
office and there questioned by Sheriff
Andrews and Deputy Sheriff Dickey
as to bis part In a transaction alleged
70 have Just occurred. He said sub
stantially that he had bought bot
tie of spirituous liquor at Wing We
Tai's store of Toong Soong the store
keeper, handing TooDg Soong 81 and
receiving back so cents change. Ii
appears by the evidence that defend
ant said he had bought the liquor
for one All Chong and just as he had
delivered it to him an officer took the
bottle, arrested defendant and there
after arrested Toong Soong and took
him and defendant to the Sheriff's
Office.
At the trial of Toong Soong on the
charge of selling spirituous liquor
without a license the defendant was
offered as a witness to prove the sale.
Having denied upon oath that he
bought the liquor he was charged
with perjury, and was duly commit
ted for trial. An indictment was
found against him, and his trial pro-
ceeded with before jury, at the last
June Term 1895 OF the Circuit Court
Second Circuit. During the trial, In
order to prove the truth of the al
Legations, that the defendant did buy
the spirituous liquor of Toong Soopg
the denial of which by defendant was
10 IT,,
a Andrews, was offered as witness
to show defendants admission of the
fact. The admission was objected to
as having been obtained by duress
while defendant was under arrest.
He does not appear to have been
charged with any definite offense.
1t is no offense under our law to buy
spirituous liquor from a person not
having license to sell. The Sheriff
says he probably was under arrest
then, but I wanted him as witness"
The Sheriff testified that defendant
said to me that he had bought the
liquor but did not know that it was
for the purpose of prosecuting" the
seller. On cross-examination the
Sheriff said Il told him that If he
told the same story he would be
clear" This was objected to on the
ground that the admission was not
voluntary but was made under
promise that he would be "clear."
We do not find In this evidence OF
the Sheriff that q promise was made
defendant which induced the orig
insl statement that he had bought
The liquor. If he told the same
story" must mean, If he should tell
on the trial of Toong Soong for SELL
ing liquor, the same story then just
told, that he had bought the liquor.
Deputy Sheriff Dickey's evidence
IS to the same effect, except that he
took down in writing the defendants
statement as to his buying the
liquor. This was read to the jury
under objection and the objection
was overruled. The law is that
where a person has made a memoran-
dunn of the statement of another, he,
the writer when offered as q witness,
may refresh his memory therefrom
but may not read the memorandum
70 the Jury as the statement of the
other person,-nor may il be filed as
evidence. See i Greenl. Ev. 436,
439. Exactly what was done in this
case does not appear. The memoir
andum IS not on file, and the Clerks
minutes do not state that it was offer
ed as evidence, and il does not ap-
pear under what instructions this
evidence went to the jury. The bill
of exceptions does not set out an
objection to the memorandum being
read as evidence. and we cannot con
slider it here.
Mr.. Dickey said: II told him we
would do the square thing by him if
ne told the same story in Court"
We understan this to be merely
promise, as In Sheriff Andrews case,
that If defendant should adhere to
the statement that he had bought
the liquor, when called in Court as
witness, the officer would do the
square thing by him." No promise
was made to him before he admitted
that he had bought the liquor.
The statute, Law of Evidence
Comp. Laws D. 379) reads: No
confession which Is rendered in evil
dence on any trial, shall be rejected
on the ground that a promise or
threat has been held out TO the
person confessing, unless the Judge
or other presiding officer shall be of
opinion that the inducement was
really calculated to cause an untrue
admission OF guilt to be made"
The presiding judge did not ex-
ciude the admission nor does it ap-
pear that he was asked to do so, and
We cannot find that his discretion
wes not rightly and legally exercised.
The exceptions are overruled.
4. NJ Brown for prosecution; A.