
    REPUBLIC OF HAWAII v. HANG CHEONG.
    Exceptions from Circuit Court, Second Ciecuit.
    Submitted July 8, 1895.
    Decided July 23, 1895.
    Judd, C.J., Frear, J., and Circuit Judge Cooper, who sat IN PLACE OF BlCICERTON, J., ABSENT .FROM ILLNESS.
    An admission was made to a police officer by H. C. that be bad bought spirituous liquor from T. S., not licensed to sell, and it was followed by a promise by tbe officer that, if be should tell tbe same story on the trial of T. S. for selling tbe liquor “be would be clear,” or that be, tbe officer, would “do tbe square thing by him.”
    Held, it was no error not to exclude tbe admission, on tbe trial of H. C. for perjury.
    An officer read to tbe jury bis memorandum in writing of a statement made to him by the defendant, which was objected to. It not appearing under what instructions this went to tbe jury, and tbe bill of exceptions not raising tbe objection, tbe Court refused to consider it.
   OPINION OF THE COURT BY

JUDD, C. J.

On tbe 19th of last March at Wailulai, Maui, tbe defendant was taken into custody and taken to tbe sheriff’s office and there questioned by Sheriff Andrews and Deputy Sheriff Dickey as to his part in a transaction alleged to have just occurred. He said substantially that he had bought a bottle of spirituous liquor at Wing Wo Tai’s store of Toong Soong the store keeper, handing Toong Soong $1 and receiving back 50 cents change. It appears by the evidence that defendant said he had bought the liquor for one Ah Chong and just as he had delivered it to him an officer took the bottle, arrested defendant and thereafter arrested Toong Soong and took him and defendant to the Sheriff’s office.

At tbe trial of Toong Soong on tbe charge of selling spirituous liquor without a license tbe defendant was offered as a witness to prove tbe sale. Having denied upon oath that be bought tbe liquor be was charged with perjury, and was duly committed for trial. An indictment was found against him, and bis trial proceeded with before a jury, at tbe last June Term, 1895, of tbe Circuit Court, Second Circuit. During tbe trial, in order to prove tbe truth of tbe allegations, that tbe defendant did buy tbe spirituous liquor of Toong Soong tbe denial of which by defendant was assigned as perjury, tbe Sheriff, L. A. Andrews, was offered as a witness to show defendant’s admission of tbe fact. Tbe admission was objected to as having been obtained by duress while defendant was under arrest.

He does not appear to have been charged with any definite offense. It is no offense under our law to T)uy spirituous liquor from a person not having a license to sell. Tbe Sheriff says be “probably was under arrest then, but I wanted him as a witness.” Tbe Sheriff testified that “defendant said to me that be bad bought tbe liquor but did not know that it was for tbe purpose of prosecuting” tbe seller. On cross-examination tbe Sheriff said “I told him that if be told tbe same story be would be clear.” This was objected to on tbe ground that tbe admission was not voluntary but was made under a promise that be would be “clear.” We do not find in this evidence of tbe Sheriff that a promise was made defendant which induced tbe original statement that be bad bought tbe liquor. “If be told tbe same story” must mean, if be should tell on tbe trial of Toong Soong for selling liquor, tbe same story then just told, that be bad bought tbe liquor.

Deputy Sheriff Dickey’s evidence is to tbe same effect, except that be took down in writing tbe defendant’s statement as to bis buying tbe liquor. This was read to tbe jury under objection and tbe objection was overruled. Tbe law is that where a person has made a memorandum of tbe statement of another, be, tbe writer, when offered as a witness, may refresh bis memory therefrom but may not read tbe memorandum to tbe jury as tbe statement of tbe other person, — nor may it be filed as evidence. See 1 Greenl. Ev. 436, 439. Exactly what was done in this case does not appear. Tbe memorandum is not on file, and tbe Clerk’s minutes do not state that it was offered as evidence, and it does not appear under what instructions this evidence went to tbe jury. Tbe bill of exceptions does not set out an objection to tbe memorandum being read as evidence, and we cannot consider it here.

A. M. Brown, for prosecution.

A. Rosa and A. 8. Hartwell, for defendant.

Mr. Dickey said: “I told him we would do tbe square thing by him if be told tbe same story in Court.” We understand this to be merely a promise, as in Sheriff Andrews’ case, that if defendant should adhere to tbe statement that be bad bought tbe liquor, when called in Court as a witness, tbe officer would “do tbe square thing by him.” No promise was made to him before be admitted that be bad bought tbe liquor.

Tbe statute, Law of Evidence (Comp. Laws, p. 379) reads: “No confession which is tendered in evidence on any trial, shall be rejected on tbe ground that a promise or threat has been held out to tbe person confessing, unless tbe judge or other presiding officer shall be of opinion that tbe inducement was really calculated to cause an untrue admission of guilt to be made.”

Tbe presiding judge did not exclude tbe admission nor does it appear that be was asked to do so, and we cannot find that, bis discretion was not rightly and legally exercised.

Tbe exceptions are overruled.  