The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1860-01-12

again till hve minutes AFTER, when Horton SalO 10
witness, l have hurt that boy, and l want you to
go and get a doctor went for the doctor Horton
was standing on the upper deck when he told me
to go for q doctor.
Cross-enamiaed-Horton seemed concerned to
have a doctor as soon as possible.
Horace Crab, su,orn-Was in company of Inst
two preceding witnesses heard a blow and fall,
did not see who struck it there was some remark
made by Horton 20 the effect, he would know
better the next time did not hear Horton call
names he didn't appear TO be excited next saw
Charlie living with his head on his fathers knee.
Mr.. Bates here wished to put the record of witness
testimony before coroner's jury TO refresh his memory.
After debate, this was allowed by Court. Mr.. Crabb
then deposed: When Horton walked aft, he said.
"You will know better next time, you son of a b"
Cross-eramined.-He said that as he walked back.
O. II. Houstoa.-Was cook on the Frances Palmer
the day of the accident saw the steward on the
gangway steps coming down saw Horton on the
gangway deck witness was coming out of the galley.
going aft, about two feet of the house on starboard
side heard Horton and the steward talking steward
said he wanted to get through his work before dark,
and was going to-at that moment looked up and saw
Horton raise up his foot and kick the steward, and
with the kick. remarked. You will, you son of a
D. and then walked aft the steward fell on
deck, and struck on his posteriors, and fell over
backwards witness then went towards the steward,
and made the expression, "Oh, my God - called
the cabin boy, and going forward, told the I'd officer
that the mate had kicked the boy 1 should say he
wastdead when he struck the deck 1 did not hear
him utter a grumbte afterwards he did not move
till I moved him there was a ring-bolt aft the main
dec K it was about eight inches from where his
head was when | went to him the iron was about
an inch in diameter, and the eye two inches.
Recommendations vas about eighteen feet
from the gangway at the time never measured the
distance. My reason for supposing him dead when
he reached the deck was, that l did not see him
breathe afterwards l could see distinctly where he
fell there was nothing to intercept the view. Was
cross-examined at great length.
Prosecution here rested. Adjourned till 3 P. NJ.
Mr.. Blair addressed the jury on behalf of the
accused, and called to the stand first,
III. T. Fitch.-Deceased had formerly been in
witness employ knew lim well, his habits saw
him Just before 1 P. NJ. of the said Sunday, and then
remarked to him, Charlie, you're tight, you don't
tight.
Mr.. Waldau, Mrs. Everett, Mrs. Clark and Mr..
Prendergast were called to testify to the amiable
character of the accused. and his kind bearing
towards I1en under him, rs they had observed it on
the vorare with him. Mr.. Bates offered to admit
what they would testify, 10 which admission Horizons
counsel declined to accept.
Wooi was recalled by the defense to show that
deceased was intoxicated, having seen him with two
bottles which appeared to contain whisky he had
invited in two young fellows about 8 z. NJ. to take a
drink.
CONGRATULATIONS deceased served US at the
table at supper he was then competen. to discharge
his duties.
Crab re- called, testified that the steward waited
upon them that night at supper witness thought
him sober.
Cross-eramiaea-Saw steward take a glass of grog
half an hour before supper he did not appear to be
drunk waited several times on witness.
Geo. G. Mclean testified seeing the steward
shaking the table-cloth had had conversation with
him a little previous thought him sober.
Ellis was recalled, and Joseph E. Manuel sworn,
to show that the steward that afternoon was sober,
and attended TO his usual duties"
After able arguments os counsel, the Court, per
Chief Justice Allen, charged the jury in substance as
follows:
You arr called upon, gentlemen, to perform a very important
it is natural TO counsel to have a fervor and enthusiasm for
their nnhscc eldfnt' In ho won and proper p = this a1sod ieet . IT. to , them, it would o. be
such sympath". We are here to hold the scales of justice on
ia hn is satnTs = T Teti it y mu sSm npt operate tor ON sll your sUu Judgment nan
or mine; This vase is a very limited one in its facts and in the
estinony, mine is to give you the law applicable to it, This
BY our Statute, whoever kiis another without malice afore-
thought, under t the sudden impulse OF ra asss tsD eMode ID ny Gs PRO
the judgment and mental faculties and weaken the possession
Of manslaughter. The disiinctiSn between murder and man
i sli is mnrl ta thf But 1nt tsnt S". not 10 '6 been n"e eharsed b Sy the the IS p ShGTe,
Attorney. In Greenleaf Oh Evidence III, 5 l19, manslaughter is
If You believe Horton was committing an unlawful act and
death was the result, it is manslaughter. 1t is an important
point for your consideration-was the accused doing an unlaw-
iul act Now, in the relation in which the parties stood to
each other, what was an unlawful act The language of the
steward was " My order is to have supper at 5 o'clock if you
ness testihes, My hour is 3 o'clock !" etc. Now what was the
undoubtedly the right, and It's his duty, to apply suitable and
commensurate punishment in cases OF insolence and insubor-
diIation.
In regard to the mate of the vessel, the law is, that matters
of disobedieIIce must be reported to the master, except in cases
Of imminent danger. as where men.are ordered oiot in a gale of
WIND, and refuse 10 go. ne master al on poaru, OF was
not, if the exigencies were not such as to require immediate and
prompt action, the case should be reported to him. If you,
gentlemen, should be of opinion, that the act was unlawful,
then you come to the question what was the effect of the blow.
and the body by force of the blow fell against "A beam. or on Il
bolt or raised object on the deck. and death is the result--it is
ship made that act lawful on the part Of the mate, then you
will consider if the punishment inflicted was suitable and COM
less and reckless of the safety of the public, and run over and
kin a man, for it is the duty of every one to exercise such care
jury, it is mansiaughter.
As to the testimony Of his good character, it is indeed very
creiitable to him but a good character does not apply where
there is positive evidence. If you m satisfied that the blow
ter may operate : If an honorable man is charged with a lar
from circumstantial evidence alone, then = is right that
he should have the advantage of his previous good reputation.
IT, as you will probably find, a kick was bestowed, an amiabie
temper Is no defense. This matter is to be settled strictly by
As to the intoxication of the deceased, if he fell over by the
coercive power of Horton and death was the result, it would be
Imanslaughter.
1ir. Blair asked that the jury be instructed that any doubts
should be given in favor of the prisoner.
JUDGE ALLEN-lf you have any rational doubts, gentlemen,
as to any material links in the testimony they will of course
to the accused but you must not entertain ay fancifnl
doubt.
The party has only the right to reasonable doubts.
Mr.. Harris asked the Court to charge that il the Captain was
not on board and not accessible the mate was the captain of the
vessel. The Court remarked that there was evidence, he be-
leved that the captain was on board the evening OF the assault,
but the jury had the evidence, and they must judge from it
there was a master who had the general charge Of the
or not
The jury retired. and after "a short absence return
ed with q verdict of Not Guiity-11 to l.
NOTES OF THE WEEK.