The Hawaiian gazette., 1869-10-27
Supreme Court-OcfOber Term,
1859.
The Kino rs. .4puna.

The King u.s. Apund.
Complaint for selling opium without IL
cense. The defendant appealed to the Cir
cult Court of the Fourth Circuit, from the
judgment of the District Magistrate Two
witnesses, Pahiha and Keliipakaua, testified
for the prosecution that they saw the pris-
oner, at his own house, turn some OPIUM
from large box into a smaller one, which
he gave to one ASH; that they saw ASH then
pay the prisoner 81; and that they arrested
ASH after he left the house. The man ASH
testified for the defense, that he was at his
own house smoking opium when he was
arrested and very roughly treated by the
witnesses for the prosecution, while he was
smoking some opium which he got from
Honolulu; that he had bought no opium OF
the prisoner, and was not at his house the
day he was arrested. On his cross examina-
tion, he testified that he had given the same
evidence before the Magistrate, and that he
did not say he got the opium from the pris-
oner; whereupon, the Attorney-Ceneral pre-
sented to the witness paper purporting to
be a sworn and witnessed statement, signed
by the witness, that the prisoner sold him
the opium. The witness said he never saw
the paper before, and that he did not know
what he did, they beat him so. The defend
ants counsel objected to the introduction of
this paper, as extra judicial, upon a collateral
matter, and neither written nor properly un-
k,- +ha dafo md 10 fba int
ducticn of evidence relating to it; but his
objection was overruled, and the paper was
allowed TO go to the jury as evidence only to
affect the witness's credibility. To this rul-
ing, exception was taken. The witness tes-
titled, Oh re-examination, that he was hurt
and stunned; did not know that he signed
the paper or what he did; and that Pahiha
held his hands. Other witnesses for the de-
fense testified that they saw ASH arrested
and dragged off roughly by the policemen,
Pahiha and Keliipakaua, ASH calling out for
help while the policemen were changing
him about.
In rebuttal, Kaukaha testified, against the
objection of the defendants counsel, that the
pdptT hdb olkEGu OtlOIC Og EHll,
ingly; that after ASH was arrested, he asked
him if he bought the opium of the prisoner,
to which he answered, yes, whereupon he
wrote the paper, and read it to ASH, who said
he understood it. The Sheriff of Kauai,
Fyfe, testified that, at the first trial, ASH had
testified that the Chinese figures on the paper
were his name, and that he got the opium
from the prisoner; also, that ASH answered
him In native very well.
The defendants counsel asked the Court
to instruct the jury "that the fact that the
witnesses, Pahiha and Keliipakaua, did not
arrest the prisoner and seize the large box of
opium, is a circumstance they may take into
consideration, to affect the credit of said
witnesses, as it regards the testimony of the
alleged sale of opium" and excepted to the
Courts refusal TO give the instruction.
The jury returned verdict of guilty. The
defendants counsel moved for new trial,
and his motion was denied. After sentence
was pronounced, the defendant moved as
follows: "And now comes Apuna, in bis
own proper person, and offers to give bond
and security for the fine against him under
the Judgment and sentence of the Court, and
for the costs of the prosecution in the case,
and for the payment of all costs in the Su-
preme Court consequent on his motion for
new trial, and the exceptions filed herein,"
which motion was denied. The defendants
Bill of Exceptions was allowed.
W. c. Jones for defendant
The following are defendants points:
l. The writing signed by the witness ASH,
should not have been admitted in evidence,
because extra judicial, written in a language
imperfectly understood by him, translated
and read to him, and marked by him, while
prisoner, beaten and confused, and not know
ing what he did at the time, and because the
statement was written by a person not au-
thorized by law to write it. Il Greenleaf's
Evidence, Sec 1852, and Notes; Q Darlington
& Payne, 4s3, 4s7; II Aid & Ellis, So3.
2. The Court erred in allowing the Attor-
ney-Generai to cross examine ASH relative to
his statement before the Magistrate, without
informing him of the nature Of the statement,
or reading the written statement to him, or
exhibiting its contents to him, before such
cross examination on the evidence contained
in that statement, or his verbal testimony
before the Magistrate. n Greenleaf on Evil
dence, Sec 462, and Notes; Roscoe's Crimi-
nal Evidence, pp 26s, 267: TayIor's Case, 8
Darlington & Payne, p. 726l
g. The testimony was conflicting, and IT is
evident the introduction of such testimony
as that admitted, had great weight with the