The Hawaiian gazette., 1876-11-15

behalf Of such person. and the plea so entered
shall have the same force and effect as if such
person had actually pleaded the same.
Sec. 80. II any person indicted for any Of
fence shall be insane and shall, upon arraign-
ment, be found so to be by jury lawfully i'm.
panneled for that purpose, so that such person
cannot be tried upon such indictment, or il upon
the trial OF any person so indicted such person
shall appear to the Jury charged with such indict-
ment to be insane, it shall be lawful for the
court before whom any such person shall De
brought so be a-raigned or tried US aforesaid. TO
direct such finding TO be recorded, and there
| upon 10 order such person 10 be kept in strict
custody until His Majesty's pleasure shall be
known. And il any person charged with any
| offence shall be brought before any court TO be
discharged ior want OF prosecution. aud such
person shall appear to be insane it shall be law
| full for such court to order jury to he impan-
nelled to try the sanity of such person and if
the Jury so empauneed shall fnd such person
TO be insane, il shall be lawful for the court TO
order such person to be kept in strict custody
| in such place and 10 such manner as to such
court shall seem fit, until His Majesty's pleasure
shall be known; and in all cases SO found it
shall he lawful for His Majesty by and
with the advice of his Cabinet to give such order
for the safe custody Of such person so found to
be insane during His Majestys pleasure in such
| pleasure and 10 such manner as 10 him by aud
with such advice as aforesaid shall seem e.
Sec. 80. No indictment shall be abated BY
reason of any dllatory plea of misnGmer or of
want of addition, or of wrong addition of the
! party Offering such plea, If the court shall be
satisfied by affidavit or otherwise of the truth of
such plea but 10 such case the court shall forth
with cause the indictment to be amended &C.
cording to the truth, aud shall call upon such
party to plead thereto aud shall proceed as if no
such diatory plea had been pleaded.
Sec. 40. II any plea Of autrefois convict or
autre0is scquit, it shall be sufficient for the de-
PENDANT to state that be has been lawfully con-
victed or acquitted (as the case may bel of the
said offence charged in the Indictment
Sec. Al. The proceedings upon any indict-
ment tor committing any offence after pre-
viOus conviction or CONVICTIONS shall be as fol-
lows-that is to say: The offender shall 10 the
first instance be arraigned upon much only Of
tue indictment as chaIges the subsequent Of
fence, and II he plead not guilty, or If the court
order plea of not guilty to be entered on his
behi.f the jury shall be charged in the first ill.,
stance to enquire concerning such subsequent
offence only and il they find him guilty or if on
arraignment he plead guilty, be shall then and
not before be asked whether he had been pre-
vously convicted as alleged in the indictment,
and If he answer that he had been so previously
convicted. the court may proceed to sentence
him aceordingIy but if he deny that he had
been SO previously convicted or stand mute of
malice. or will not answer directly to such ques-
tion the jury so in the first instance charged as
aforesaid or Git by reason of plea of guilty IN
the FIRST instance no such Jury has been so
charged) then jury 10 like manner as in other
cases, shall be charged to enquire concerning
such previous conviction or convictions and in
the case of jury so charged in the first instance
1t shall not be necessary TO swear the jury again.
bat the oath already taken by them shall for all
purposes be deemed to extend to such last
mentioned enquiry. Provided that il upon the
trial of any person for any such subsequent Of
fence such person shall give evidence of his good
character. it shall be lawful for the prosecutor in
answer thereto to give evidense of the convie-
ton Of such person for the previous offence or
offences. before such verdict of guilty shall be
returned, and the jury shall enquire concerning
such previous conviction or convictions at the
same time that they enquire concerning such
subsequent offence.
Sec. AZ. Any person indicted for a crime
punishable with death shall on demand upon the
clerk by himself or his counsel, have list of the
jurors reterned delivered to him. and shall also
nave process to summon such witnesses as are
necessary for his defence.
Sec. 43. In all cases of felony 10 which the
party accused is unable to employ counsel for his
defence, the court may assign him counsel from
among the licensed practitioners, who shall use
every lawful exertion in his behalf without fee or
reward, upon pain Of contempt to the court.
Sec A. Every native Hawaiian arraigned
upon indictment for any offence shall, on demand
upon the Attorney General, be furnished with a
copy of the indictment in the Hawaiian langu-
age.
Sec As. The prosecuting attorney shall open
the case. and first introduce his witnesses and
proofs and after the evidence for the defence has
been presented, and the accused or his counsel
has summed up and closed his case, the prosecut-
ing attorney shall have the right TO sum up the
entire evidence and close the debate.
X.-Defeuce.
Sec, 46. All persons tried for any offence
shall be admitted after the close OF the case for
the prosecution to make full answer aud defence
thereto by counsel or attorney.
XI-Varianees and Amendment.
Sec. 47.-If on the trial of any indictment
here shall appear to be any variance between |
The statement in such indictment aud the evil |
lenCe offered in proof thereof it shall and may |
De lawful for the court before which the time !
shall be had, If such court shall consider such |
7arlance not material 10 tue merits OF the case,
md that the defendant cannot be prejudced |
hereby in his defence on such merits, to order
uch indictment to be amended according to the |
proof 10 such part of the indictment aud 10 such
manner as such court shall think fit, on such
erms as to postponing the trial to be had be-
ore the same or another jury as such court shall
hnk reasonable and after any such amendment
he trial shall proceed whenever the same shall
De proceeded with, in the same manner in all re-
pects and with the same conveyances, both
With respect to the liability of witnesses to be
Informed against for perjury aud otherwise, as if
10 variance had occurred; and in all such cases
where the trial shall be so postponed, it shall be
awful for the court to discharge the jury sworn
rom giving any verdict, and to cause to be en-
Orsed on the indictment the words Jury dis
harged" from giving verdict. Provided, that
all such cases where the trial shall be so post
Ioned as Aforesaid. it shall be lawful for such
odrt to enlarge the bail of the defendant and
be surety or sureties (if any accordingly; 10
uch cases the witnesses who may have been
ummOned to give evidence shall be bound to
ttend to give evidence respectively, and the de-
sndant shall be found to attend TO be tried at
he time and place to which said trial shall be
ostponed without entering into any fresh bail
ond, or being served with fresh process for that
urpOse. in such and the same manner as If the
efsndant originally bound and he witnesses
to appear and give evidence at the
me and place to which such trial shall have
ecu postponed. Provided also, that where