The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1885-06-09

ihr opening arEum-ut Of Iii :
kInd ! s. usually regarded o., . consi..lr-
alb Importance 10 the deIcad-nJ. At a
lot very remote . rid H. the history OF
the law it was. in fact, the main argument
on mis- behalf but our UsaSes aud customs,
and 20 tzCue e1tent. our statutory pro
visions have made q change IN the law %
@ certain degree in that Iespef I. Never
theless, deem Il my duty, under the per
mission Of his Honor. ID enter into the
opening OF this case with some consider
able degree of particularly. So far a.
the facts and the law upon which the de
PENDANT relies here. IL Is very necessary
that they should be thoroughly understood
as we proceed with the testimony itself.
Mr.. Highton said that the ordinary duty
of counsel for the defense came home with
peculiar force for The reason that the pros
ecution Of special counsel in his opening
statement limited himself to 9 vindictiVe
statement Of the oftenSe without alluding
TO the rights the defendant possesses and .
definition of the grades OF crime dispas
authorities upon the opening Of criminal
Case by the prosecution, extracts from
which he read. The first case cited WA
Proffat on Jury Trials. Section 209, page
PCS, in which IL was held that the proseCu
ton should take special care in the open
ing statement 10 give all the facts ex
pected to be proven. The next case cited
WAS that Of Garrison vs.. Wflcoxsen, Ilth
Georgia, page l54, to . similar effecs
Counsel then quoted the language of As
torney- General Umau OF South Carolina il
the celebrated CaSn murder case. IN EeD
ruRry. 1881. As 70 bis duty As q prosecuting
attorney.
Mr.. Highton continued: I'm the order
Of advocacy. in the excitement almost
necessarily generated by the episodes OF ar
important case. il il often difficult even
for the official representative Of the State,
who has no interest in the result beyond
the faithful discharge OF his duties TO the
public, to restra n himself within the linn
its prescribed by law. which il 30 jealous
OF any invasion Of personal liberty that Il
hedges in the citizen. so to speak. with
multiplicity Of rules designed for his pro
tion of tho community itself. How much
more difficult. how almost impossible ii
must be for private counsel. however ablG
and conscientious. employed by indivtd
uAls. to whom only one result can brins
any satisfaction, to hold themselves within
these s8lutary restrictions. And yet
anomalous as their position may seem q
be. unless they transcend these ooliga
tions, they, too. like the District Attorney
like His Honor upon the bench. like your
selves. gentlemen in the box. ara
BOUND UNDER THEIR oATHs
To see that no injustice is done to a de
PENDANT charged with crime. Carefully
refraininR. then, from any imputaticG
upon the particular gentlemen select in
thls instance, have no hesitation in say.
Jag that the fact that Michel II. de Young
sS here. repre- sented by his own counsel in
addition to the able advocate who officially
appears for the people. is one element in
Anr defense, to this extent, that il entails
apon you, gentlemen, the incest discrimi-
RRtion in weighing the facts IS they may
present them. We cannot always and eI-
teotuAlly guard ourselves against our own
weaknesses. prejudices and manifold i'm
projections; but in you, gentlemen, chosen
20 decide TINS case by reason Of your in
telligence and your impaTtiality. Uncon-
pected with the parties taken from the
body Of the people who constitute the
BtAte the repositories OF the Law as il
noWs pure and unooStructod from the lips
Of his Honor upon the bench. aad of the
delivered by the witntses-in
you. gentlemen, we recognize nal
lr6iter to whom both sides may con IDENTITY
look for justice. Counsel then read the
in the case.
The statutory definition of the crime
alleged, Section 2l7 OF the Penal Code, was
then read Every person who assaults
another, with intent to commit murder, is
punishable by imprisonment IN the state
Prison not less than one nor more than
fourteen years"
1T results from the nature of this in.
formation, said counsel, land from tho
section of the statute upon which it is
and from the authorities with
which his Honor is undoubtedly familiar.
bearing upon the question, that in this
Ease. In order to sustain the charge which
he information makes, every ingredient OF
except death must be proven, 20
Justify conviction. Without stopping TO
cad tho authorities. refer to two upon
hat sub ect which are unusually clear and
EXPLICIT, the case u Smith va. the State. -
Georgia, SS. 80 and 81, and the case of the
People VS.. hurat. as Cal, 81. and
COMPLETE DEFENSE.
After defining the crimes of murder and
counsel continued:
Had the prosecuting witness. 81 the
main prosecuting witness here. died from
he effects of the shooting OF November -,
8SA il the offense would only have been
then an assault with intent
o murder has not been proved in this case.
m case of alleged homicide. moreover,
ind in a case like this. which is analogous
% IL in certain aspects. much testimony
nay be introduced to show whether the
crime OF murder In the first or second de-
gree was committed.
In this connection counsel read from
Uenty- fourth California Reports. D. 70.
ind said that malice could not be implied
where IL was shown that there was suf-
icient prOvoCation Of depraved heart.
1T appears, then, first. that TO consu-
ute murder in the first degree, when no
proof Of express malice has been intro
there is none here-malice can
lot be implied, first where there has been
my considerable proVocation, or second.
when the circumstances attending The act
10 not show on the part Of the defendant
both an abandoned and malignant heart;
hat is q heart brutal. tnhuman, depraved,
promo to violence with heat, out from the
Tery love OF cruelty, and destitute OF the
ordinary sympathi9s of human beings.
S0cond-ThAt in murder of the second
ie4ree there is, first an absence of ire
istible or overwhelming passion, which
would reduce the otfense to manslaugher,
Ind, second, no sufficient proof OF the COM
oined elements OF willfulnsss, delioeration
md premeditation necessary TO constitute
murder in the first degree. II in
his case all the elements or murder to
which have referred do not exist, so that
I can be distinctly brought within one or
he other of the classes which have been
had the result Of the act COM
planned of been death. our defense 10 the
very grave accusation madd by the in
ormation is oven now. at this moment,
complete"
AN OBJECTION.
When counsel referred to the testimony
II the prosecution in the case. Mr.. Camp
1eu objected to such reference and cited
decisions of the Supreme Court of this State
md sections of the Code to sustain his OBJ
ection He claimed that the defense had
10 right to discuss the evidence on behalf
If the prosecution before evidence for the
defense is in.
MIR. Highton replied that the object
Vas not to present an argumen; upon the
acts, but to state, tersely and briefly,
hose points arising upon the testimony
or the prosecution itself, which the coun-
vel for the defendant claim to enter into
and form constituent parts OF the defense.
This is all we propose TO do We have no
dea of arguing the facts ofthe case.
The Court do not perceive that there
g much difference between the position
Ehich you take to defend yourself and
hat stated by Judge Campbell against IL.
Mr.. Highton-There is this difference, ii
your Honor please; it is all the difference
oetW cen right which the defendant pos
5esses, and a right which he does not
possess. Ne have fright to say, il we are
a defense. for instance. upon the
ground OF self defense. that there is Ger
tain proposition which we claim the prose
cutiOn itself TO have eSta bllshed, which as
! matter of fact. is a constituent ele-
ment in that particular defense; and
" hen we state that we are only exercising
the statutory right of presenting TO the
Court and jury the precise points upon
which the defense rests. Now. OF course
"a to whether we are right or wrong IN our
differences from the facts, that Is cues
ion to be ultimately decided by the jury
after an argument hU Ell upon them' oui
we have right to state our position, be
,ause. without stating it, the statement OF
TIC defense would be incomplete and In
u .iCicnt.
lie Court-W ell / wish you would keep
7nl criticising the testimony as much as
sirle.
POSITION OF TIFF DEFENSE.
MIR HiChtOn-I shall avoid il alLOQetheF