The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1874-05-13
supreme Court--1n BancO.
April Term, ISsA.
The Kinq Is. John -Assga.


Court as follows:
The defendant, John Asegut, had been prose
cuted in the Distuc; Court Of North Kohala
Island Of Hawaii, for the larceny OF COW claim.
ed BY one George Holmes TO be his property
ami being found guilty in the District Court, ap-
pealed to the Circuit OF the Third Judicial CIR
cut.
At the trial before jury At the tern Of the
said Court, holden at Waimsa, Hawaii, in No
vembsr, 1873, the Honorable Justice presiding,
instructed the Jury:
That to take property openly under claim Of
right was not larceny, but trespass only.
That felouious intent must be found TO con-
etitute the crime OF larceny.
That if the jury believed from the evidence
that the defendant took the COW 10 question IN
der claim OF right, they would find him not
guilty
The jury after retiring, returned verdict OF
guilty.
To which verdict the defendant by W. C.
Jones, Esq. his attorney. excepted on the ground,
J. That the verdict was contrary to the law
and the evidence.
H. That the verdict was against the instruc-
ti1ns OF the Court and also gave notice that be
would Gle motion for new trial Afterwards
defendants counsel moved the Court to set aside
the verdict on The grounds,
J. That the verdict OF the Jury is agains. the
Law.
IL That the verdict Of The jury is against the
instructions Of the Court.
III That the verdict Of the jury is against
the evidence.
". That the evidence in favor Of the defend
ant - greatly prePouderatss that It shows mis-
take or prejudice ia the minds Of the jury in rem
dsring the verdict Of guilty. This motion hay-
ing been denied by the Court, defendants eOun-
SCI fled his exceptions and appealed to this Court
From the evidence as certified I'D to this
Court. il appears that the COW IN question once
belonged te Holmes. who claims that be owned
her on the 30th daF Of April last, the day Of the
alleged larceny OF her.
Holmes testified that on the aforesaid 30th day
OF April, being At his own house, be sas defend
Hut and three other boys driving band Of cat
t.s a. about mile of, and likewise saw them 20
aside iron the road and get beaatiful fat COW
(.he COW IN question: and drive il into their flock.
Holmes went after them, and on coming Up with
them angry words were exchanged. Holmes
droFe of the coz. tie defendant Threatening him
10 mske him trouble lpilikia), and one Of the
compsnY said that tie COW belonged to them.
The witness does not say which Of them made
this remark. though Il appears from the testimony
ttst The defendant bad the charge OF the drive.
Holmes further testf6ss that they made no re-
sisl4ace 10 his driving If the COW except in Ian
guags.
Tins 1t appears that the defendant drove of
the COW II open daylight, within sight from Mr..
Holmes house, and when Mr.. Holmes iuteriered,
he or one Of his companions claimed that be had
right TO take the COW, and would make Holmes
pliEis for tsking il away,
z Asegut, tbe defendants father. testified that
he had IN April last bought this COW OF Holmes
and paid him twelve dollars for II, aud told bis
soa 70 90 and get II
James Noble tesIi6es that be saw E. Asegut
The father buy the COW Of Holmes, ard heard
BIN direct his son to 90 and get IL
Holmes denies that any such purchase was
made.
Kahalahalu testsss that be heard The fzther
tell the sea 10 60 aBd get The Gov.
This Coart would not sci aside a verdict wbeR
there Is testimony on both sides. aud 1t Is merely
8 question OF credibiIity Of SiJResses. upOu which
the jary have the right as well Is the best op-
Portuniiy Of passing. bgt where the evidence IN
favor Of defendant 50 greatly prePoa5era,es as TO
sh0w mistake or prejaiice, IN the minds OF the
jury in rendering verdict Of guilty. It becomes
The duiy Of the Court 10 set aside the verdict.
II this case 1t world appear that The jury fell
into the mistake Of supPosing that the owner
gult or innocence OF the defendant and gave
more credit 10 Holmes 6euisl Of the purchase
than TO (. Asegu,s and J. Noblss assertion Of
IT, which they has 3 rigtt 70 de. Bat the goes-
ilo1 10 this case was not the ownership Of the
beast, but the intent Of the defendant; and it is
plain that the testimony Of Holmes. 50 far from
cOutradiesiog the testimony OF the three witness
es for the defence, confirms them.
Il would certainly have been a more proper
mode Of proceeding if the defendant had gone to /
Mr.. Holmes house and asked lin 10 deliver the
COW, and OF course, s mere assertion Of a right
Of ownership Ehea discovered IN carrsing of 1
piece of property would have bat little weight
snd jury would be right il taking into consi5era-
toa whether the asserted right Of oEnerzhip was
mere preteaoe-
In this case. BY the testimony certified up, it !
does not appear that the claim Of right was one
started at The moment Of or in consequence Of I
beng discovered, and the witness E. Asegut (tbe
father. By asserting the psrchase and acknowl-
edging the order 10 lis son, directly opens him
self 10 prosecution If his assertion OF purchase !
be untrue
ItmHy be that there were Circumstances at the I
trial or N The bearing Of witnesses that iudaeed
The jury to beiieve that the idea Of purchase vas
an after thought or the resalt Of collision be 4
tween the father and son bat sach does not ap-
pear to Be the case. By The record before the !