Opinion op the Court, by
Preston, J.The defendant was convicted in the Police Court of Wailuku of the offense of having opium unlawfully in his possession, and appealed from such conviction to the Circuit Court of the Second Judicial Circuit, which appeal came on for trial before a foreign jury at the last December Term of the said Court at Lahaina, McCully, J., presiding, Fornander, Circuit Judge, being also present. The jury rendered a verdict of guilty. The case turned upon the fact as to whether the' defendant had the actual possession of the box containing the opium (18 tins).
Counsel for the defendant requested the Court to direct the jury:
*554“1. In order to convict the defendant, the jury must be convinced beyond a reasonable doubt that he had, in his own undivided possession and not subject to any custody by others, a quantity of opium, with full knowledge that the package contained opium.
“2, It is not sufficient that he should have approached or taken hold of the box, or even admitted its ownership. If he either is not proven to have known its contents, or was merely preparing to assume its possession when arrested (knowing its contents), he should be acquitted.”
Which instructions the Court gave, but added (inter alia):
“I charge you that if the statement of Sheldon is true, it supports possession. If defendant was expecting to receive opium and took it (the box) to himself as such, that would convict him. That if the jury should find that the wagoner offered to deliver to the defendant the box in question, placed it at the disposal of the defendant, and interposed no condition to his at once taking it from the dray, and that defendant thereupon advanced, as though to take the box, and took hold of it, and proceeded until stopped by his arrest, that was an appropriation of the box by defendant, and constituted possession thereof by him, and if there was opium in the box, that constituted opium in possession. It was not necessary for defendant to remove the box in order to perfect his possession.”
To alL of which said charge and instructions, except that portion requested as aforesaid, defendant’s counsel then and there excepted, and also excepted to the verdict as being contrary to the law and the evidence.
The exceptions were argued on the 18th of February last by C. W. Ashford, for defendant, and Paul Neumann, Attorney-General, for the Crown.
By the Couet.
The instructions asked for and given were extremely favorable to the defendant. The other parts of the instructions (excepted to) were, we think, justified by the evidence, and were unobjectionable.
The case was left to the jury on the evidence, and we, being of *555opinion that there was evidence to justify the verdict, cannot, according to the decisions of this Court, set aside the verdict of the jury.
Paul Neumann, Attorney-General, for the Crown. Ashford & Ashford, for defendant. Honolulu, March 6, 1886.The exceptions are therefore overruled and a new trial denied.