
    TERRITORY v. LAM BO, ALIAS KWON SUN LOY.
    No. 987.
    Error to Circuit Court, Second Circuit.
    Hon. W. S. Edings, Judge.
    Submitted April 16, 1917.
    Decided April 26, 1917.
    Robertson, C.J., Quarles and Coke, JJ.
    Appeal and Error — verdict—evidence• to sustain.
    
    Where there is more than a scintilla of evidence sustaining it a verdict finding a defendant guilty will not be disturbed.
   OPINION OP THE COURT BY

COKE, J.

The defendant-, plaintiff in error herein, Lam Bo, alias Kwon Sun Loy, was tried by a jury in the circuit court of the second circuit charged with having sold liquor without a license to one Bohn at Paia, Maui, on the 19th day of September, 1916. The jury returned a verdict finding the accused guilty and he was sentenced by the court to pay a fine of one hundred dollars. Defendant, the plaintiff in error, comes to this court on a writ of error relying upon the single error claimed to have been committed in the trial of said cause, to wit, “that the verdict rendered herein is contrary to the law, the evidence and the weight of the evidence in that there is not more than a scintilla of evidence of the guilt of the defendant.” The evidence introduced in behalf of the prosecution consisted of the testimony of Joseph Morris, captain of police of the district of Makawao and a police officer by the name of Jack Hana-maikai. Morris testified in effect to having given to one Bolin a marked dollar and instructing him to proceed to the store of the defendant Lam Bo to purchase liquor; that he and the other police officer took a position on the veranda of the store from which place they could look through a window and observe the transaction and hear the conversation between Bolin and the defendant; that Bolin entered the. store of defendant and asked defendant if he had any beer; that defendant thereupon wrapped up four bottles of beer which he passed to Bolin who gave to defendant one dollar which the police officers later recovered from the possession of the defendant. It is further shown that on searching the store a box containing four and one-half bottles of beer was found in the defendant’s store in addition to the four bottles claimed to have been sold to Bolin. The police officer Hanamaikai corroborated the testimony of Morris. The defendant gave evidence in his own behalf, and in denying the sale of the beer to Bolin explained that the four bottles of beer which he delivered to Bolin immediately preceding his arrest was beer that had been left at his store by Bolin earlier in the day and that the dollar paid to him by Bolin was a payment on account of a debt which Bolin owed to the defendant. Bolin, to whom it is claimed by the prosecution the beer was sold by the defendant herein, was not produced as a witness at the trial. This witness, possessing as he did first-hand knowledge of the alleged sale of liquor by the defendant, should have been called to testify by the prosecution or failure to call him should have been explained. The evidence of the prosecution, to say the least, was unsatisfactory. The jury, however, while it might well have done otherwise, found the defendant guilty, and it appearing to us that there is more than a scintilla of evidence tending to establish the defendant’s guilt we are loath to disturb the verdict.

■Eugene Murphy for plaintiff in error.

E. R. Bevins, County Attorney of Maui, for the Territory.

The judgment herein is affirmed.  