The Hawaiian gazette., 1869-12-01

] leave no margin IOr pfhUif ana duueu, ihht
he himself would have sold all the bone Of
his firm at that rate; and also, that be had
apprised the defendant of the risk of in
vesting in an article so fuctnating and
uncertain; and that whalebone had been
sold in New York last August at &C
cents in gold, and that the price had fuc-
tusted in Europe during the last is months,
20 to 50 per cent; and further, that the
good catch Of this season, would proba-
bly, keep it at a low figure hereafter. He
says the defendant was entirely unacquainted
with the bone trade, and had II 0 confidence
in himself, and it does not appear in evidence
that he had been advised by anybody as TO a
safe buying price, and it would seem
that he was So influenced by the canton he
had received from so reliable quarter, that
he had not sought to purchase any, and
would probably have kept clear Of it entire
ly, if it had not been offered TO him at a rate
which he felt might realize, even If the price
should fall as low as it had done in the pre-
vious August.
In my estimation, 40 cents is not so gross
ly an inadequate a price as TO Justify jury
in inferring from it guilty knowledge
which would probably have been the case, if
the price had been anything like the $40 for
the package sold by Morgan, the Sd mate of
the OriOle, an amount so grossly inadequate
as to have of itself excited suspicion.
Let us now proceed to the consideration
of the evidence of Nakookoo, the chief actor
in all the four stealings, and the agent in all
the sales of bone to the defendant, and who
stated, that before he brought any bone TO
the defendants premises, he had talked with
him about it, and had told him that he could
not bring it in the daytime, as he would
only get it from foreigners on board ships at
night, and that defendant had agreed tn buy
/ it at 40 cents. He says further, that he asked
defendant, whether the makai gate on Mer
chant street would be shut or open at night,
and that defendant had replied, that the gate
should be left open, aud that he would speak
to his kanaka Keamalu, to that effect And
| on his cross-examination, he says that Kca-
malu told him, that defendant had ordered
him not TO lock the gate at night. In relation
10 the manner of locking the gate, it appears
by the evidence of Keamalu himself that
the Merchant street gate, through which
Nakookoo says all the bone was carried, has
not been locked for the last seven months,
during which he has been there, and that il
is fastened merely by an iron clasp falling
over the top, and easily opened from the out
u; II
examination. What was the necessity or
advantage TO the defendant, even on the
theory Of his guilt, to order gate to be left
unlocked which never was locked, and is the
statement that he promised to do thing so
very silly and unmeaning probable or cred
ible one, and does it not SAVIOR of desire
to give tone to the evidence of the man,
who, on his own admission, is an expert
thief and quite capable of embellishing
his evidence by small fabrication like this.
Nakookoo further stated that on the occa-
sion of the sale of subsequent lot of bone,
the defendant asked him if he was not afraid
to bring it at night, and that he had replied
that he was not afraid, so long as the defen-
dant bought it of him, and he positively
denied, on crOss-examination, that he had
told young Mr.. Anthem oranybody else, that
he took the bone at night because he had no
license, or to evade a license, statement
fatty contradicted by Mr.. Anthem himself,
who also swears positively that Nakookoo
volunteered to tell him that he had brought
the bone at night to evade or dodge the
license, statement which strange to say
Mr. Anthem did not think of sufficient i'm
portance to communicate to the defendant,
till after the Marshal and Sheriff had arrived
aud commenced the inquiry about the stolen 4
whalebOne, and which, if made known to the
defendant would undoubtedly have prevent
ed him from dealing any more in the article
Such is the evidence of the only witness
who has given any direct testimony of guilty
knowledge on the part Of the defendant, aud
who the Attorney General contends, is per-
fectly reliable witness, although an humble
individual, the Court being as he says, no
respector of persons; and moreover, because
he has not been charged with any previous
crime, and because his evidence has not, us
he alleges, been impeached or refuted, po-
sition from which l most decidedly dissent,
seeing that an, important statement made
by him in evidence has been fatty contradic-
ted by Mr.. Anthem, who was of course per-
fectly reliable, and that his story about the
locking of :he gate is SO very improbable as
TO be utterly incredible, from all which can
come at no other conclusion than that jury
would most probably place no more reliance
on his testimony than l do and l confess
am unable TO believe it.
Mr.. Dayton, the Deputy Marshal. stated
that when he called on the defendant to en-
quire about the stolen whaebone, he at
once, and most frankly and readily gave him
all the aid in his power in eliciting the truth,
by exhibiting the bone and also his books.
and in every way acted with the most perfect
eandor and fairness, fact always of much
Importance in the consideration of cases like
the present, where the existence of a guilty
knowledge is the matter to be ascertained
Any attempt at concealment or suppression
beingalways damnatory TO the accused Just in
the same ratio that their entire absence oper-
ates in his favor. If the defendant had
knowingly purchased and stored stolen pro-
perty, it is impossible that lac would not lave
more or less manifested consciousness of
it, which the lynx-eyed aud experienced off
Ger would not have failed to detect
The foregoing is fair epitomc of the
evidence on the part of the Crown
On the part of the defendant, his own
two clerks, Messrs. Pfuger and Anthem,
have been examined, and proved that
the defendant had never seen any of the
bone until after his arrival at his office about
nine o'clock in the morning, and knew a5so-
iutely nothing whatever, of the mode or
time of bringing it there, and the Attorney