Opinion oe the Court, by
Preston, J.At the last term of the Circuit Court for the Second Judicial Circuit, held at Lahaina, in December last, the defendants were convicted of the offense of gaming. .
The evidence for the prosecution was to the effect that on the *54629th of October last, H. G. Treadway, Deputy-Sheriff at Wailuku, entered the defendants’ premises at Wailuku, under a search warrant; that the defendant, Ah Lee, was lying apparently asleep in a room, and that two stamps and a book were found on the table, and some money ($98 05) in two drawers, also thirteen books under the table, and some lottery tickets, and other lottery apparatus. Some of these articles were found under the mattress upon which Ah Lee was lying.. The witness, Treadway, testified as to the manner in which the drawing was conducted. The defendant, Ah Fu, was found in a room upstairs, preparing to escape, and other papers were found in this room.
Ah Mau testified that he purchased lottery tickets from Ah Fu, one day in the last week in October, (for one Aki) paying $2 95 for them ; that the money was paid to Ah Fu, who handed it to Ah Lee; that Ah Lee took a lottery ticket which he handed to Ah Fu, who gave it to witness, who delivered it to Aki; that the ticket (produced) was the lottery ticket, and it did not win; that the books, stamps and papers produced were for use in connection with a lottery.
Aki testified to giving money to the previous witness to purchase lottery tickets, on October 26th, and received the ticket produced; that he took the ticket to defendant, Ah Lee, who told him it had not drawn anything; that he never got his money back. The books seized by Treadway contained accounts of the gaines and losses of the lottery or bank.
For the defence the defendant, Ah Lee, testified that he did not know either of the witnesses, Ah Mau, or Aki, never saw either of them before hearing at the Police Court — did not sell the ticket — never saw it before prosecution — neither of the witnesses, Ah Mau or Aki, came to him before the prosecution for the purpose of buying or otherwise concerning a lottery ticket— and never had any dealings with either of them.
Ah Fu, the other defendant, was called, but his evidence was not taken, as it was admitted by the prosecution that he would testify to the same effect as his co-defendant.
The jury convicted the defendants.
The defendants excepted to the verdict as against the law, and being contrary to the evidence, and gave notice of a motion for a new trial.
Attorney-General, for the Crown. Ashford & Ashford, for defendants. Honolulu, March 2, 1886.The motion and exceptions were argued on the 19th inst., when C. W. Ashford contended that there was no evidence of the sale of the lottery tickets by the defendants; that the defendants, having testified that they did not sell the tickets or have any knowledge of the witnesses, Ah Mau and Aki, it amounted to the testimony of two against one, as the witnesses only deposed to separate transactions on different occasions, and that there was no evidence that any money had been lost or won by the defendants.
The Attorney-General contended that the evidence was sufficient, and the jury having believed the witnesses for the prosecution, a new trial should not be granted.
By the Court.
Section 1, of Chapter XXXIX, of the Penal Code enacts:
‘ ‘Whoever, by playing at cards or any other game, wins or loses any sum of money or thing of value, is guilty of gaming.”
A lottery is a game within the meaning of this section.
If the evidence of the witnesses is believed, it must be the fact that these defendants won the money paid by Ah Mau for the ticket produced.
It is not denied that the various articles stated by the Deputy-Sheriff to have been found in the rooms of the defendants were so found.
It was entirely a question for the jury as to whether they believed the defendants or the witnesses for the prosecution, and they having the right to convict, even upon the evidence of one witness, if they believed him, and having convicted the defendants, we think that according to thé decisions of this Court, a new trial should not be granted, and therefore overrule the exceptions, with costs.