22 Haw. 479 | Haw. | 1915
OPINION OF THE COURT BY
On the verdict of a jury finding him guilty of keeping intoxicating liquors for sale without a license the plaintiff in error was adjudged by the circuit court of the third judicial circuit to pay a fine of five hundred dollars, to ..which judgment he obtained a writ of error. At the trial there was evidence tending to show that on the 24th of August, 1913, the date of the alleged offense, the plaintiff in error Was conducting a general merchandise store or business at Kailua, county of Hawaii; that on said date the sheriff of the county of Hawaii, upon procuring a search warrant from the district magistrate, went to defend
The errors assigned are two — first, that the court erred in that part of its charge to the jury as follows:
“In this jurisdiction it is provided by law that the fact that any person engaged in any kind of business has or keeps posted*481 in or about his place of business a receipt or a stamp showing payment of a special tax levied under the laws of the United States upon the business of selling intoxicating liquors, shall be held and deemed competent evidence that such person is keeping for sale and is selling intoxicating liquors. Hence if you believe, beyond a reasonable doubt, that defendant had or kept posted in or about his place of business such receipt or stamp such fact is competent evidence that he kept intoxicating liquors for sale. Beyond this it is not necessary for the prosecution to show that the defendant did at any time sell intoxicating liquors,”
and second, that the court erred in overruling the motion of the defendant for a new trial.
Under the facts in this case, as shown by the uncontradicted evidence, we think that there was no error in that portion of the charge of the court hereinabove quoted, to which plaintiff in error’s first assignment relates. It is provided by Act 157 of the Laws of 1913 (omitting the title of the act and the enacting-clause) as follows:
“Section 1. Act 119 of the Session Laws of 1907 is hereby amended by adding thereto a new Section to be known as Section 38A, and to read as follows:
“Section 38A. In any prosecution under this Chapter, the fact that any person engaged in any kind of business has or keeps posted in or about his place of business a receipt or stamp showing payment of a special tax levied under the laws of thé United States upon the business of selling intoxicating liquors or the holding of a license from the government of the United States in the name of any person to sell intoxicating liquors shall be held and deemed competent evidence that such person is keeping for sale and is selling intoxicating liquors.” (Approved April 30, 1913.)
We are of the opinion that by the word “competent” as used in the act the legislature meant admissible for the purpose of establishing the fact .that intoxicating liquors were kept for sale and sold, in other words, such evidence as, if believed, would authorize a jury to find the fact. State v. Johnson, 12 Gil. (Minn.) 378, 387. The jury were properly instructed, “If you
Having before them tbe evidence of two witnesses, not only as to tbe finding of the so-called federal license, together with a quantity of intoxicating liquors, in tbe outhouse near tbe defendant’s place of business, but also tbe uncontradicted evidence of sucb witnesses as to tbe admission made by tbe defendant that be kept tbe license so that be could keep and sell liquor, tbe jury were properly instructed that, if they believed tbe evidence, “beyond this it is not necessary for tbe prosecution to show that tbe ¿efendant did at any time sell intoxicating liquors.” “One may be convicted of unlawfully keeping liquor for sale without proof that be actually sold any liquor or offered or exposed it
Under the second assignment, that the court erred in overruling defendant’s motion for a new trial, the contentions argued by counsel for plaintiff in error are for the most part disposed of by what we have previously said. The first two grounds of the motion and the only ones argued by counsel for plaintiff in error in their briefs are that the verdict of the jury was contrary (a) to law, and (b) to the evidence and the weight of the evidence. We have carefully read the evidence in the case and are of the opinion that there was no error committed by the lower court in overruling defendant’s motion for a new trial. The evidence was amply sufficient to support the verdict, and as has already been said, we find no error in the charge of the court to the jury. This case by stipulation of counsel having been submitted in this court on briefs, assignments not argued in the briefs will be considered to have been abandoned and will not be noticed. 2 Cyc. 1014; Republic v. Ah Yee, 12 Haw. 169.
Finding no error in the record the judgment should be affirmed, and it is so ordered.