The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1859-09-21

she should have been stayed They got out the
oars and being without rowlocks, put them in the
rigging and endeavored to pick up the man who
was now about 35 fathoms astern. The boat was
running six to eight knots per hour when Wat
son jumped over, saw him rising and sinking in
the water three times, after which he disappeared.
They waited a fey minutes and made sail for the
harbor. None of the parties seemed to be IN
liqYor at the time.
Cross Erannned.-The gunwale was more or
less under water till we come round the point
of the boom would not dip when the gunwale
was under water. Watson jumped from the
thwart for the boom. l caught the second blow
and partly intercepted it and tried to prevent the
third striking. The blows followed each other
quickly-after the third blow, Capt. Mason had
the tiller in his hand, but not threateningly.
The cross examination was quite protracted.
William Lamb, sworn, deposed like the last
witness as to the sailing out with prisoner and
the conversation between him and Watson,- said
that the first blow hit Watson on the breast and
that Fitzgerald parried the third blow and not
the second. Could not see if Watson was hurt
by the blows, they followed so quickly. Watson
had not time to step forward. The bottom was
full of ballast. He could not catch the boom
because the sail was round it. He struck against
it with his breast. He sunk and rose toward the
boat and sung out .ssave me-" 1t was not half
a second from the time the third blow was given
tillWatson jumped overheard. He had time to
say to the Captain, you are not going to kill me
in the boat. Think the tiller was out ten min
utes altogether-the boat might continue her
course that time without beng steered and not
.o,,a into tLo MIDI. Aba boof xrac cloca haplo1
Cross examined at length much Of what was
elected in the examination of these witnesses,
which occupied till half two P. M, when the
Crown rested-will be found in 9TH r parts of this
report.
Mr.. Montgomery, then moved that the Jury be
directed to acquit the prisoner on the ground that
the evidence did not sustain a material averment
of the Indictment to wit, that there were threats
Of further ~riolence. Whereas the evidence was
that after the third blow, the Captain turned the
tiller back in his hand and made no further de-
monstrations.
Watson might have retreated to the bow of the
boat had he been in rational dread of future
violence of which however there is no proof. Mr..
Montgomery further urged that there is no proof
of the death of Watson. His body had not been
piOuuOCu- Nv Hihh might 81 iai uc lHc CIV
is concerned, be now alive in the wilds of Hawaii.
Further it is not in proof that the offense alleged
was committed within the jurisdiction, to wit one
marine league from the shore. And if not proved
it could not be presumed against the prisoner.
On these grounds, Mr.. NJ. moved that the Jury
b. instructed to discharge the prisoner.
The Court ruled, that as to proof of the death
of the prisoner it was the province of the Jury
and not the court to decide secondly as to threats
of further violence it was for the government to
show that the deceased jumped overheard from a
well grounded apprehension, to the satisfaction
of the Jury. The case must go to them.
Mr.. Montgomery proceeded to open the case
for the defense. He would show that a part of
their testimony was conflicting, a part from the
of the case, impossible. And to a part
testimony would be opposed. He would
show by respectable witnesses that from the stern
sheets of the boat to the thwart where Watson
was eight feet distant, and it was quite inn
for the Captain to have reached him with
the tiller. lie cahed the attention of the Jury
to the difficulty of Capt. Mason's position, the
only witnesses to the transaction being hostile to
Their evidently hostile demeanor and their
contradictory statements would not fail to the
noticed.
f. j. Smith was sworn for the defense to the
of a draft of the sail boat presented
by the counsel for defense and to measure the dis
upon it. From Watson's seat to Capt.
Mason was I feet 5 inches. Capt. Mason holding
the tiller in his hand, extended his arm and the
tiller a distance of but 4 feet 10 inches. From
the center of the after thwart to the center of the
mast was ) feet Q inches. The boat was % feet
8 inches.
Mr.. Drei1, LIST officer of the Orestes, deposed
that Capt. Mason on the Sunday evening, ordered
Mr.. Fitzgerald in irons, not for going ashore with
out leave, but on account of an alteration with
witness. Witness had sailed in the sail boat,
had tried sitting in the seat where Mason sat to
reach with the tiller, a man sitting where Watson
had, and could not do it. Fitzgerald, after COM
ing on board that evening, mentioned that he
had been struck on the arm, did not complain of
being much hurt. The Captain took the boat
put to try her in a seaway, as the Orestes being
in a leaky condition, there might be need of the
small boat. Watson was of very little use on
was no sailor.
Cross examined. Mr.. Fitzgerald was sent to
mis- room for having words with the Captain ; and
FOR an alteration with witness, the Captain or
1ered him to put Fitzgerald in irons.
w. III. Morton, Il convict, was sworn to dis
,redit the government witnesses by proof of
they had made while in prison, of
hostility to the prisoner. Several other witnesses
were here called on minor points of testimony.
The testimony being closed at IL A. NJ on Tuesday,
Mr.. Montgomery proceeded to argue the defense. He
would decline to notice the point that Capt. Mason
mad exceeded his authority in taking his men out on
Sunday. He cited authorities to show that it was
that death resulted from well grounded
of future violence and further attacks
which would endanger life. But it was in evidence
hat during the striking. Capt. Mason used no threat,
n fact, said nothing, and Immediately after turned
he tiller back in his hand and lowered it, and that
.fter elaboration Watson, from some unaccountable
motive, jumped overheard, when he might have re-
.reated to the fore part of the boat. 1t would be evil
lent to the jury that Fitzgerald and Lamb were
hostile to the prisoner. 1t would be impossible.
the distance from Mason to Watson, and
he length of the tiller and of Mason's arm, that