Arizona republican., 1895-01-11
THE LAW OF IT.
A. F. G. KirSChOff Con-
ViCted Yesterday
Of Selling Spirituous
Liquor to an Indian.
The Courts Instructions Left
the Jury One Thing To Do
That the Defendant May Not Have
the Law is No Defense.

! The second of the cases against A. F.
C. Kirscnoff, charged with selling lqu-
or to an Indian was tried yesterday and
ended in conviction. There had been
three indictments on one of which the
defendant was tried the day before and
in which the jury had disagreed. This
case and the third Indictment were
thrown out. The defendant was re-
leased on bail to appear for sentence to-
morrow.
All three cases were essentially alike.
The Indians to whom the liouor had
been sold testified to the purchase and
the defendant himself admitted having
sold il but set up in defense that the In
dians told him they were Yaquis, and
that he believed them to be. Other
witnesses who were present at the
transaction testified that they believed
the purchasers were Yaquis or Mexi-
cans.
This defense has been frequently urg-
ed in this class of cases, frequently with
success. So much success, in fact, that
in the first case against Kirschof there
was disagreement Notwithstanding the
instructions of the court, which was
construed to be declaration of belief
in the defendant's guilt, not necessarily
wilful guilt bet a plain violation of
the law.
Judge Bakers instructions yesterday
were accordingly pref 4r-d with a view
that they could not possibly be misun-
derstood. They entered into full ex-
planation of the purpose of the law and
were designed not only to guide the
jury in the consideration OF the present
case, but to prevent ii possible future
, violations of the law by reputable and
other dealers under misapprehension.
Said the court after having made a
{ statement of the case
Every person who sells, exchanges,
f gives, barters or disposes OF any ardent
spirits, ale, beer, wine, whisky or in
e toxicating liquor of any kind to any
t Indian, under the charge of any super
: intendent or Indian agent, is guilty"
Then having explained the separate
provinces of the court and the jury as
3 judges Of the law and the facts, he con-
[ tinued:
. This law is intended for the sup.
preston OF the vice of selling or dispos-
ing of ardent spirits to Indians, under
the charge of a United States Indian
agent or perintendent. Strictly
speaking, it is not penal statute. The
rule of common law that penal statutes
are to be strictly construed does not
i apply to this statute. The punishment
fixed by this statute is not infamous
1t is in substance police regulation
only, and, as | said before, it is intended
2 FOR the suppression OF the vice of selling
liquor to Indians, which the policy Of
the law recognizes as dangerous thing
dangerous to society and dangerous
to all good government.
''If you believe from the evidence in
n this case, beyond reasonable doubt,
! that the defendant at any time prior &C
- the 31st day OF Decem Der, 1891, and
q within three years before that date
sold whisky to the witness, John G
Y Carlisle, in this county and territory
: and if you furthermore believe from the
n evidence, beyond reasonable doubt
that the witness, Carlisle, is an Indian
= under the charge of a United State:
Indian agent, then you will find the
defendant guilty as charged in this in
,
d ''Indians are competent witnesses in
cases of this class and character; and
furthermore charge you, gentlemen Of
the jury, that the TACT, if it be fact ir
this case, that the defendant honestly
believed that he was selling the liquor
to Yaqul Indian or Mexican, if he did
sell any liquor at all. will constitute no
D defense to him in this case, but if he
in fact, sold liquor to an Indian under
the charge of the United States Indian
agent, he is guilty, although he may
d have been deceived into selling the
same and though he may have hon,
estly believed that he was selling the
liquor to Yaqui Indian or Mexican
and not to an Indian under the charge
OF the United States Indian agent OF
# uperintendent-such is the law of this
l. case.
at is alleged in this bill of indict.
: ment, gentlemen, of the jury. that the
charged offensA was committed on OF
e about the 23d day of June, 1894. As q
v matter of law it is immaterial as to the
h exact date OF the selling of the liquor
if fany selling was made, SO long as it is
esta blished by the evidence that the de
s fendant did sell liquor to an Indian IN
S der the charge of the United States In
dian Agent at any time prior to the 31s