The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1914-06-09
Gives DECISION
IN LIQUOR CASE.
Judge Matthewman, Of Hawaii,
Makes Lengthy Ruling in
Blind Pig Test Case.

tFHNlfUN 'ONAN NANhtNN AAtA ~ WI "
the third circuit court at Kailua has
Submitted to Tho Advertiser o copy Of
= decision recently handed down IN his
eowt On the motion for new trial in
ono Of the ,sblina pig tsst easos,
The law, the violation Of which IS
involved, is Ast l57 Of the session
Laws 81 1913, making the possession OF
a federal internal revenue liquor tax.
stamp, or certificate, by an unlicensed
dealer, prima facie evidences that
liquor is being sold in eontrayention'
Of Territorial law. Judge Matthowman
Aays.
There were two cases, ono against
Yilen Kee Aiona and another against
Akana, alias Pong Kong Sing. On the
trial Of the former the Jury found the
defendant not guilty. Il was an odd
verdict, dine, possibly, TO . failure Of an,
Inexperienced Jury TO appreciate the
new statute which was read to them.
On the trial OF Akana, TO avoid Al
repetition Of the former verdict, the
jury wore told by the court" Beyond
this (proof Of posting stamp It Is not
necessary for the prosecution 60 show
that the defendant did at any time sell
intoKicating liquors. Akana was
Convicted and, on the over-ruling Of
his motion for new trial, Is TO take
his case to the Supreme Court.
There arc four main points I'M
yolyed in his motion; [a) That liquor
obtained by a search warrant cahpot
be used as evidence against the own.
ers; OBJ That oral evidence as to an
Internal revenue stamp cannot be &c.
eepted in lieu Of the stamp iteelf; (c)l
That the court should not have charged
the jury in the words above qnoted,l
(d) That there should have been proof
of signature Of the Internal Revenue
Collector upon the stamp
Liquor - Evidence.
Judge Matthewman's decision on the
motion for 0 new trial in the Akana
case takes up the consideration Of the
first contention, THAT liquor obtained
by search warrant cannot be used as
evidence against the ownef.v
Clandius H. Mcbride, Akaua's coun-
sci contended that while the police
might use discriminating evidence iIleg-
ally seized by them, they could not use
property recovered by use Of search
warrant without violation Of defend.
ant Z constitutional guarantee OF priv.
ilege not TO incriminate himself BY his
own tostim0py. Judge Matthewman
denied this motion to strike,
on Mcbride . second eontentiOn that
oral evidence as TO an Internal Rev
enne stamp cannot be accepted in lieu
IN the stamp itself,'i Matthewman also
denied The motion to strike. He cited
y. s. vs. Reyburn, 81, Y. s.. 1865, wherein
il is. stated. eff
We think the objection in this re-
spect mot well founded; bat that the
case falls within the rule, that when the
non-production Of the written instru
ment is satisfactorily accounted for, sec.
opdary evidence of its existence and
contents may be shown. This is a gen.
eral rule Of evidence applicable to
criminal as well as civil SUITS
Mcbride having eontended that no
notice to produce the Internal Revenue
stamp had been made against his eli.
emit, Judge Matthewman ruled that
Akana had admitted possession and an
order was unnecessary, This Testimony
reads:
SHERIFF Pla testified as follows:
| So / stopped the car right outside
of Alui 3 store and asked him that I
wanted TO see him in the store. So he
came along with me, and in the store
! served the search warrant ON him,
and asked him to deliver over his prem.
Uses to me, for was about to search
for hqper. And be said, SAN right.
Then ! said, II know that you keep .
United states license He said. Eyes,
and asked Where Is itf' and he said,
Down below SO he took
me and the deputy down to small lit,
tie house, about 5x6, and there l found
his United States license stuck up on
the wall of that small little house. J.
| asked him by what right he was keep.
ing that United States license, and be
said he had right to keep il, and that
a haole from Honolulu came and gave
II TO him SO that he can keep and sell
liqnor. And told him, who told you
TO put this license up over herep and
he told me, Mcbride.
objects to Jury Charge.
The third contention Of counsel for
NSAohNeht WAS tnah Tue IuuHt SHOULD
not have charged the jury, 7" Beyond
proof Of posting stamp II Is not neces-
sary for the prosecution to show that
the defendant did at any time sell, in
toxicating liquors. q McBride,s arRu-
ment hinged on the meaning of the word
ttcompetontii' ilf the wording Of the
LAVE" deemed competent evidence that
such person Is keeping for sale and is
selling Intoxicating liquors. Matthew
man ruled that in the meaning and in
tent Of the law "admissibleD could
have been substituted for reompe.
tent. = He ruled:
HThen, If the posting Of the federal
stamp is TO be deemed admissible evi-
dence that liquor Is being sold, IL Is
but to say that evidence Of such post.
ing is to be admitted for that purpose
that is, that the posting Is some svi'
dence that liquor is being sold. with
this posting once before the Jury, il ii
quite unnecessary for the government
70 do more as 70 proof Of sale. Hence
II was proper TO charge the Jury Be
You'd this (proof Of posting stamp) Il
Is not necessary for the prosecution tG
show that the defendant did nj any
time sell Intoxicating liquors. = 1t Il
IT,. n - Il -