The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1859-09-21
Trial Of Thomas Mason,
Master of British bark "Oresfes.'' charged scith
Murder in the Second Degree.

"S
A special term of the Supreme Court was held
at Honolulu, on Monday, the 10Th of September.
Chief Justice Allen and first Associate Justice
Robertson presiding-A. B. Bates, Esq, appear
ed for the Crown, and j. Montgomery and j. ID.
Blair, Esq.'s, for Prisoner.
The Indictment was rs follows:
"Thomas Mason is accused of the offence Of murder in the sec.
August, 1859, within the jurisdiction OF this Court, Thomas
extenuation by law, by forcing the said Joseph Watson, by blows
with a large club being a deadly weapon, and threats of further
in doing which he came to his death by throwing himself into
seventh mv Of chapter VII. of the Penal Code, the peace Of Kameha-
meha ~, his crown and dignity
To which the prisoner pleaded not guilty A
Jury was drawn from the panel which had been
specially summoned and approved by the Acting
British Consul. The Counsel for the prisoner
declined to make objection.
Mr.. Bates represented to the Court that a
sketch of the evidence upon the examination in
the Police Court, having been published in the
newspapers with m by one or more OF
them, it would be pro per to enquireof the jury,
if any of them had formed any opinion upon the
case, as he proposed to introduce no other wit
nesses than had testified in the lower court.
j. L. Waterhouse, of the Jury, said that he
had formed and expressed an opinion that Mason
ought not to have been sent up to the Supreme
Court, and was excused from the Jury.
E. p. Adams, was excused.
A. j. Cartwright, stated that he had discussed
the affair but thought himself able to give verdict
according to the evidence presented. lie had not
read the published report of the examination.
Mr.. Cartwright, after examination by the Court
and Counsel, was accepted. A. T. Lawoon, ex-
oncad fr having formed an opipiap q n racal He'd
by Mr.. Montgomery, and asked if he had formed
a conclusion. Mr.. Blair argued that an opinion
formed from newspaper report was not a legal
objection to serving on the Jury. Every man in
this community, who is fit for Jury duty, reads
every English newspaper issued at the islands.
But such a report is no authority and would not
be here introduced. The testimony of the wit
nesses might now be entirely different from what
was previously given. The question was whether
the Juryman's mind is SO biassed that he cannot
change his opinion, and bring in an impartial
verdict.
The Court having conferred, Judge Allen said
that the glory of a Jury trial was the perfectly
independent, unbiased and unprejudiced mind OF
the Jurors. This was what we wanted. Though
it would be inconvenient to summon additional
Jurors, yet it would be far more inconvenient to
the prisoner to have a Jury against him. 1t
would be better TO send to Maui for a Jury.
Take the case of Mr.. Lawton. he has very pro-
perly stated that he has a preconceived opinion.
He is therefore incompetent. The Court stated
as the rule that the question was whether the
Juror has a bias for or against the prisoner, such
as will require previous evidence to remove. Six
gentlemen having been thus excepted the Jury
was finally sworn rs follows:
Francis Spencer, Charles n. Spencer,
J. C. Hadiey, Il. q. Clifford.
Thomas Hughes. is. Walker,
Charles Brewer al, A. J. Cartwright,
George C Mclean, G. p. Ward,
Mr.. Bates in opening the case stated that the
circumstances were PECULIAR special Jury at
the request of the British Consul and the trial
brought in at this early day without waiting for
the excitement to subside. But it was due to the
Consul to say that he had Immediately written a
note to himself, (AIr. Bates) requesting him to
take such steps as justice might require. Mr..
Bates read the indictment and the law which is
as follows.
PENAL CODE, CHATTER VII, SEc:l.-ss Muir
der is the killing of any human being with malice
aforethought without authority, justification or
extenuation by a law Sec. 3. \ murder
ommitted without deliberate and prcmeditated
malice and all murder not coming within the
meaning of the ID section is murder Of the second
degree which by section 9TH is punished by i'm
prisonment at hard labor for = term of years not
less than five nor more than twenty.
The life of the prisoner, Mr.. Bates remarked
was not in the power of the Jury, as he believed
had been the public impression. By section 9,
under an Indictment for murder the Jury may
return a verdict for murder in either degree, or
for manslaughter which by section 8 is killing
without malice, under the sudden impulse of
passion excited by provocation or other adequate
cause, and punishable by imprisonment at hard
labor not more than ten years or by fine of not
less than one thousand dollars nor more than ten
thousand.
1t would not be denied that Joseph Watson,
on the day alleged, went to his final account.
How, was the question. He claimed that it was
by the act Of another. The prisoner was master
Of a vessel in the harbor, the deceased was n sea-
man of the ship. This action did not take place
on board the ship, but in a boat while making an
excursion on Sunday outside the harbor, not in
the discharge of duty and while the captain had
no authority over him as a master. Though he
would allow the master to have plenary authority,
still it must be clearly in, the discharge of
his duty, and in emergencies only that he use a
club upon a man, and so he should ask the Court
to instruct the Jury. In the present instance the
Captain had forced the man beyond his duty
and if by any means he had intimidated the nan
or driven him to desperation he was responsible
for the consequences by our statute and by the
common law, and extenuating circumstances are
to be considered by the Court and not by the
Jury.
Thomas Fitzgerald, second officer of the Orestes>
sworn, deposed that on or about the 2lst of Au-
gust last. he accompanied the prisoner in a boat
outside the reef together with Joseph Watson
and William Lamb. 1t was Sunday between two
and three o'clock in the afternoon. We went
out two miles beyond the outer buoy-and a
quarter of a mile from the reef. Watson was
fnlron 70 hal tho boat