Recheungel v Trust Territory [1964] TTLawRp 19; 2 TTR 517 (14 January 1964)

2 TTR 517

TRIAL DIVISION OF THE HIGH COURT

PALAU DISTRICT

Criminal Case No. 250

BEMOCH RECHEUNGEL and ANEMARY NGIRAILMAU

Appellants

v

TRUST TERRITORY OF THE PACIFIC ISLANDS

Appellee

January 14, 1964

Defendants were convicted in Palau District Court of illegal sale of liquor and of giving liquor to a minor, in violation of Palau District Public Law 8-61. On appeal, defendants contend alleged sale was from store owner's private stock, not part of regular course of business, and that it did not constitute offense of selling alcoholic beverages without a license. The Trial Division of the High Court, Chief Justice E. P. Furber, held that law in question restricts not only sale in regular course of business, but all sales of liquor which have any commercial or public aspect.

Affirmed.

1. Criminal Law-Appeals-Scope of Review

In considering case on appeal, appellate court must test sufficiency of proof on basis of what trial court had right to believe, and not on what defendant in criminal prosecution wishes it believed.

2. Appeal and Error-Scope of Review

It is not function of appellate court to weigh evidence anew or pass on credibility of witnesses when trial court's findings are supported by substantial credible evidence, even though there is also evidence to contrary.

3. Liquor Control-Sale

Sale by individual of his own liquor is not excepted from broad words of Palau law forbidding sale of liquor to minor. (Palau District Public Law 8-61).

4. Liquor Control-Sale

Broad interpretation is generally given to word "sell" in connection with laws seeking to control distribution of intoxicating liquors.

5. Statutes-Construction

Courts have obligation to give effect to laws as made by legislative authorities and not to read into such law exemptions which may seriously hamper their enforcement.

6. Liquor Control-Sale

Intent of Palau law restricting sale of liquor is to restrict to persons licensed thereunder all sales of liquor which have any commercial or public aspect. (Palau District Public Law 8-61).

7. Liquor Control-Sale

Exhibiting of hard liquor on shelves of retail store, dispensing liquor and beer from store, and accepting payments or making charges therefor comes within field of activity which is prohibited under Palau law regarding sale of liquor, regardless of whether liquor or its proceeds are considered part of assets of store business. (Palau District Public Law 8-61).

8. Liquor Control-Sale

To constitute "selling" in violation of Palau law regulating sale of liquor, it is not necessary to show sale was in regular course of particular business. (Palau District Public Law 8-61).

Assessor: Interpreter: Counsel for Appellants: Counsel for Appellee:

JUDGE RUBASCH FRITZ SYLVESTER F. ALONZ WILLIAM O. WALLY E. TERMETEET

FURBER, Chief Justice

This is an appeal from a conviction of giving liquor to a minor, in violation of Palau District Public Law 8-61, Article VIII B, 3, in the case of the appellant Bemoch Recheungel, and from a conviction of illegal sale of liquor in violation of Palau District Public Law 8-61, Article V A, in the case of the appellant Anemary Ngirailmau.

Counsel for the appellants argued that the evidence showed the appellant Bemoch went to a store tended by the appellant Anemary Ngirailmau and obtained from her two bottles of Suntory whisky which belonged to the storekeeper personally and had been left over from some drinking by the owner of the store and some friends, that Bemoch didn't know who stole one of these bottles and gave it to a small boy and, further, that when Bemoch paid Anemary, a day or so later, for these two bottles of whisky, she had given what she estimated the price to the owner of the store instead of putting it with the store funds. Counsel claimed that just paying the owner for the two bottles of whisky didn't constitute the offense of selling alcoholic beverages without a license under the public law in question.

Counsel for the appellee argued that testimony offered by the government showed clearly that a minor, age 15, had given the appellant Bemoch money to buy liquor for the minor, that Bemoch had bought it from the appellant Anemary at the store being tended by her, and had given it to the minor. He further pointed out that the government had also shown that hard liquor had been on exhibition on the shelves of the store and that beer kept there had been bought there by at least two persons. He argued that under these circumstances the sale of the two bottles of Suntory whisky at the store constituted a violation of the public law in question since the law was particularly designed for the regulation of stores.

The government's evidence-in-chief only tended to show the sale of one bottle of Suntory whisky by Anemary to Bemoch at the store and the giving of it by Bemoch to the minor in question, but the testimony offered by the accuseds showed clearly the delivery of two bottles of Suntory to Bemoch by Anemary, alleged from the store owner's private stock simply as a matter of personal accommodation, Bemoch's payment to Anemary of $1.00 for them a day or so later and her payment of 70¢ to the store owner. What happened to the remaining 30¢ was not explained. Uncontradicted testimony showed that neither the store owner nor Anemary had a license to sell alcoholic beverages of any sort, and in rebuttal it was clearly shown, as claimed by counsel for the appellee, that hard liquor had been on exhibition on the shelves of the store (although it did not appear that any was in public view at the time of the delivery of the two bottles of Suntory), that beer from the ice box in the store had been sold by Anemary at the store and cash received or charge made therefor, but that these sales had allegedly been made only to the store owner's friends.

OPINION

[1, 2] The conviction of the appellant Bemoch rests squarely upon conflicting testimony. The evidence favorable to the government, if believed, clearly and expressly covered every element of the crime. The trial judge had the opportunity to hear the witnesses and was in a much better position to judge of their credibility than this court can be merely from reading the record. As stated by this court in Krispin Oingerang v. Trust Territory, 2 TTR 385:-