The Maui news. [volume] (Wailuku, Maui, H.I.) 1900-current, 1922-08-04

evidence differed on the finding of
the various parts of the still. Defen-
dant testified he disclaimed owner
ship at all times. His testimony was
that he had rented a place to sleep,
the shed, the kitchen and the store
room to All Cheong and it appears
the latter had lived on the premises
until the time of his arrest the day
before.
Counsel for the defense raised the
point that repeated demands for the
opening of the store-room door con
stituted moral coercion and there was
no search warrant and an illegal en-
try into the store room.
First Entry Legal
Relative TO the shed that was 60
feet from the dwelling house and used
for storing bran mash, Mossman held
the entry was made legally. He a
however, relative to the bran mash,
that there should have been evidence
that it was to be used for distilling
as it might be innocently used for
feeding cattle or other purposes. 1t
must be shown that the mash, wort
or wash kept by a nan having a still
is such as might produce spirits.
Concerning the search of the pre-
misses, the invitation to enter the
house waived constitutional rights of
the defendant but such waiver was
withdrawn and the invitation with it
when reluctance was displayed and
three demands made before the store
room off the kitchen was entered.
From then on there was moral COM
] D1lSiOn' in the case decided
Illegal Search Misdemeanor
Relative to immunity from search,
even with a warrant, of a dwelling
house used exclusively for dwelling
purposes, Connolly VS. the United
States is cited. In that connection
Magistrate Mossman quoted Sec. 6 of
the Supplemental National Prohibition
Act. which makes illegal search by
an officer a misdemeanor punishable
by a fine of not more than $1,000 or
Imprisonment for not more than i
year or both. He quoted Judge Dool.
ing of the U. S. District Court, North
ern District of California as saying:
"The protection thus afforded to the
people can only be insured by the
courts. 1t is far more important that
the right to be secure in their per
sons, houses and effects be zealously
guarded than that a few individuals
be convicted of violating the prohibi
ton or any other law. 1t is one o.
the most sacred rights that the Con
stitution should be the first to recog
niZe and defend it." United State;
VS.. Mitchell ct al, 274 Fed. 100.
Magistrate Mossman then contin
ued:
while the efforts of Federal Pro
hibition Enforcement officers t.
bring the guilty to punishment arr
praiseworthy, they should not be aid
ed by sacrificing the great fundamen
J tai rights secured by the Constitution
> and having sworn that they woulc
support and defend the Constitu
! ton and Laws of the United States
including the Prohibition Law, the.
should be the first to recognize ant
defend them"
Not Even Accessory
The Magistrate held that if it ha,
been shown that the still belonged
to the defendant and he had rente'
it to All Cheong or that he mad as
sisted All Cheong in Illicit making O
liquor or participated in the makni
he would have been guilty as an &C
cessory but nothing Of the kind wa
shown and then he commented Of
the failure of the prosecution to pu
All Cheong on the stand in rebutta
to disclaim the ownership of the mas
J still and okolehao which the defend
ant asserted was his.
1t is an outstanding point that III
der this decision the having of liquo
in possession in a private dwelling
E house unless there be proof that liquo
has been sold there will not consti
tute grounds for the issuing of
search warrant nor for seizure eithe
u with or without a search warrant.