
    THE TERRITORY OF HAWAII v. AH MOON.
    Exceptions erom Circuit Court, Fourth Circuit.
    Submitted April 25, 1902.
    Decided May 3, 1902.
    Frear, C.J., Galbraith and Perry, JJ.
    Failure to notify opposing counsel of the filing of a bill of exceptions, as provided in Circuit Court Rule 15 C, if that Rule is still in force, does not warrant the dismissal of the exceptions in this court.
    A transcript of evidence which is not made ia part of 'the bill of exceptions by reference or otherwise and which was not filed in the court below, cannot be considered by this court.
   OPINION OF THE COURT BY

FREAR, C.J.

Exceptions by defendant in a prosecution for furnishing a poisonous drug, to' wit, opium, without a license, under Penal L., See. m.

The prosecution first moved to strike the bill of exceptions from the record on the ground that notice of its presentation in the Circuit Court had not been given, &c., as required by Circuit Court Rule 15 O. Assuming that that Rule is still in force, it is directory and the remedy wras by proper motion in the Circuit Court. Egan v. Brewer, 9 Haw. 198.

Deputy Attorney General J. W. Gathcart for prosecution.

Fitch & Thompson and W'. 8. Wise for defendant.

The prosecution next contended that there was nothing before the court under the bill of exceptions. This contention must be sustained. The only exception set forth in the bill is one to the overruling of a motion for a new trial based on the ground that the verdict was contrary to the'law and the evidence. But the evidence is not made a part of the bill by reference or otherwise, and indeed, although a transcript of evidence appears among the papers sent up, it was not even filed in the court below. See Keliiilihune v. Vierra, 13 Haw. 28.

The exceptions are overruled.  