The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1901-12-14
no INSTRUCTION UNDER SEC. 457
JUDGE HUMPHREYS DECLINES
TO ACT IN ACCORDANCE
WITH A MOTION.
Deputy Attorney General catheart
Asked That Jury Be Instructed
Under Section 457, Penal Laws
o. 1897.

The case OF the Territory against
August Richard alias Rickard Kunst
who was charged with selling liquor
without a license, was called in Judge
Humphreys court yesterday morning,
and the following jury empaneled:
Jas. Kahalepua. II. c. Bickerton. Alex.
K. Aona. Alex. G. Nicholas, Guy Liy-
ingston. Geo. W. Harrison. Harry 5.
Swinton. Isaiah Bray. Edwin X. Blake.
John J.. Hansman, Jas, X. Merseberg,
Joseph Richards
Kunst was visited by two white
winged emissaries OF the police. and
by them under the guise OF friendship
was induced. so they alleged. to show
a bottle OF wine, for which he was
lodged in Jail by Officer David KAPPA.
After the converting Of court, De-
putty Attorney General Cathcart pre-
scented his case and placed Kailianu
on the witness stand.
The second witness was Nakoleilsu.
His version OF the affair was an ex-
act reproduction OF Kailianu's.
When David KAPPA took the stand
there was a revelation. He said he
employed the two above named gen
tlemen TO so out and look for viola
lions OF the law. He selected a hunt
ing ground and sent his two knights
forth. They reached their destina-
ton and asked for something to drink,
rendering in payment therefor the
money they had received, and accord
ing 10 their testimony. Kunst fell an
easy victim 10 their wiles and placed
4 bottle OF wine and two glasses up
on the festal board. During this
time David KAPPA. having climbed
number OF back fences, appeared up
on the scene, startling the erring
Kunst by declaring him a prisoner.
After ransacking the house and peer
ing under beds. Kappa discovered, he
alleges. five and one-half cases OF
Green River whiskey, number of bot
ties OF gin. 81 bottles of wine and
glasses too numerous 10 mention.
At the conclusion Of Kapaa's testi-
mony. Deputy Attorney General Cath
cart requested the court 10 instruct
the jury. under section 457 of the
penal code. Judge Humphreys took
the matter under advisement and a
recess was ordered until o'clock, ct
which time the Judge declined to In
struct the Jury as had been requested.
The attorneys for the prosecution
and defense having rested their cases.
Attorney L. NJ Strauss made an able
effort in favor OF his client. followed
by a strong appeal for conviction by
the prosecution.
Judge Humphreys then delivered
bis charge. 20 which the jury listened
The case then went TO
the jury. In one hour verdict OF
guilty was returned.
The prisoner viii be sentenced this
at 10 o'clock.
In declining TO instruct the jury
under section 457 OF the Penal Laws
u 1897. Judge Humphreys gave the
following decision:
The defendant in this case is charg-
ed with selling spirituous liquors
without 4 license so to do, in contra
yention OF our criminal laws. The
evidence is all In and the Attorney
General now moves that the Court in
the jury frame a charge
under section 457 OF the Penal Laws /,
n 1897. Said section is as follows:
The delivery Of anv spirituous liquor.
aither by the owner or occupier. or
,y his or her servant or other person |
n the house or place shall be deemed 4
o be sufficient prima facie evidence of /
money or other consideration being
.iven for such spiritnous liquor. so
IS 10 support a conviction unless
ROOF 20 the contrary be given to the
OF the jury" Prohibition
oes not exist in this Territory. We
ave no statute which declares il lille
al for one TO give away spirituous
Quor In ones own house. To do so
, in legal contemplation an innocent
Ct. This statute converts what may
iell be not only an innocent but
act into presumptive-
: criminal one until the defendant
ives "prcof TO the contrary TO the
abstraction OF the jury. For in
lance, a sick neighbor sends 10 my
louse for q glass OF brandy. His
ervant is seen leaving NV premises
nth the brandy. whereupon under
his statute | nav be arrested. charg
d with selling spirituous liquor and
pom mere proof that the liquor was
by me. or hv NV servant.
BAY be convicted thereof unless
rove my innocence. History reads
ONE sad lessons TO the judicial mind
s 20 what Draconic laws have been
ut upon the statute book TO enforce
Dme supposed necessity Of state and
, even the innocent 10 get st the
Utility on the same tyrannicsl plea
I necessity" Nav we not para
arase the cry OF Madame De Stael
"a exelaim: Oh necessity. what out
Iges are committed in thv name2 In
Fery age and country OF the civiiiz-
world where the common law has
zen known, IT'S humane maxims that
e crime charged must be proven be- ,
md a reasonable doubt and 10
oral certainty. and that everv person
larged With crime is presumed 90
, innocent. are household words
Aown as well by the tyrO and the