
    REPUBLIC OF HAWAII v. HOSHINA.
    EXCEPTIONS PROM CIRCUIT CoüRT, FlRST CIRCUIT.
    Submitted Sept. 22, 1896.
    Decided October 19, 1896.
    Judd, C.J., Frear and Whiting, JJ.
    
      Alibi. There being evidence produced hy defendant tending to prove that defendant was elsewhere than at the place where the offense is alleged to have been committed at the time alleged, the Court was justified of its own ¡motion in charging the jury as to the law of alibi.
    
   OPINION OF THE COURT BY

WHITING, J.

The defendant was convicted on a charge of unlawfully selling opium in the Circuit' Court, Eirst Circuit, and brings his bill of exceptions to tbis Court claiming error in tbe charge of tbe presiding judge to tbe jury.

Tbe judge charged tbe jury on tbe law of alibi, tbe language of tbe charge however is not objected to, and tbe law as charged is admitted as sound law, but defendant claims that tbe defense of alibi was not set up by him and was not in issue in tbe case, and that be was injured and prejudiced by tbe Court construing tbe defendant’s evidence as offered to prove an alibi, whereas defendant claims it was merely to discredit tbe witnesses for tbe prosecution and was offered for no other purpose.

Tbe evidence certified up appears to have been presented generally without limitation nor for special purposes, and nowhere does it appear that defendant intended or offered to restrict its effect to discrediting testimony of witnesses for tbe prosecution, rather than for tbe purpose of proving an alibi.

Tbe defendant merely excepted to tbe charge of tbe Court as to tbe law of alibi, but made no request for tbe Court to charge that tbe defense did not include an alibi or to limit tbe issue otherwise so as to exclude tbe question of alibi.

Counsel for parties may request tbe Court to charge tbe jury on questions involved, and tbe Court may of its own motion charge tbe jury upon any point of law involved in tbe trial.

Tbe Court in tbis instance charged tbe jury on its own motion that alibi was in issue and charged tbe law accordingly, and tbe question is, was tbis point involved in tbe case.

An alibi is in criminal evidence, tbe defendant’s showing under bis plea of not guilty and without special averment, that when tbe criminal thing was done be was at some other place where be could not be tbe doer.

1 Bishop, New Criminal Proc., Sec. 1061.

“A prisoner or accused person is said to set up an alibi when be alleges that at the time when tbe offense with which he is charged was committed, be was elsewhere, that is, in a different place from that in .which it was committed. If proved, it is of coxirse a complete answer to tbe charge.”

1 Am. & Eng. Enc. of Law, 454.

Tbe place where tbe alleged delivery of tbe opium was made, was on tbe premises of tbe defendant. Tbe evidence of tbe prosecution’s witnesses showed that tbe delivery was made in tbe evening in tbe yard of tbe defendant by tbe defendant himself to one Masui. Tbe opium consisted of 20 small packages in a big tin box, and Iiosbina banded it to Masui in tbe yard outside Hoshina’s bouse; that one Iwata went and brought tbe box and banded it to Hoshina in tbe yard, Iwata coming from tbe street.

Tbe defendant and bis witnesses testified that Masui came to Hoshina’s bouse, which was a small cottage, with but two or three small rooms, and that neither Iwata, Hoshina nor Masui at any time went out or left tbe room, nor in fact any of the witnesses went out while Masui was at tbe bouse, but all remained in tbe parlor — and when Masui took bis departure, be left alone and none of those present went out with him, nor did Iwata nor Hoshina go at any time into tbe yard with Masui. That all tbe rest except Masui, remained at Hoshina’s bouse for over an hour after Masui left, and none went out until 11 o’clock, p. m., when Iwata and bis wife went home. There was also evidence of what took place in tbe parlor of Hoshina’s tending to show that neither Iwata nor Hoshina could have gone into tbe yard with Masui that evening.

Tbe effect of such testimony is certainly to show an alibi, for it tends to show that Hoshina was not in tbe yard with Masui at any time during tbe visit of Masui, and if so tbe transaction alleged could not have taken place, for Hoshina would then have been in a place elsewhere than that of tbe alleged place of offense, and in thus attempting to account for all bis whereabouts and all bis actions during tbe time of Masui’s visit, but in a place different from that testified to by Masui, tbe Court was fully justified in using its discretion in giving in its charge tbe law of alibi.

Exceptions overruled.

Attorney-General W. 0. Smith and Deputy Attorney-General E. P. Dole, for prosecution.

A. G. M. Robertson, for defendant.  