The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1885-07-11

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the circumstances Immediately surroundin
the transaction, that the defendant, wit
malice aforethought and the felonious in
tention to kill NJ. 81. De Young, made tn
assault alleged, your verdict should d
guilty as charged in the information.
If you entertain a reasonable doubt of thu
guilt of the defendant upon the charge of al
assault with intent to commit murder, i
will be your duty then to inquire as t.
whether be may be guilty of any lesser
offense necessarily included therein.
Of these there are two, as follows
l. Assault with deadly weapon, which
| is an assault committed upon the person o.
another with Il deadly weapon or instru
ment, or by any means likely to produce
| great bodily injury. This Offense must be
found, if at all, to have been commit tied
with intent to infict such great bodily in.
jury.
! 2. Assault which is commonly called
simple assault, and consists of ''an unlawful
attempt coupled with present ability, to
! commit violent injury on the person OF
another If there be no present purpose
| to do an injury there is no assault. There
| must be an Intentional attempt, by violence,
to do ali injury to tie person of another to
constitute this offense.
And in like manner and terms, as l have
instructed you concerning the charge of as
sault with intent to commit murder | also
so say to you that in order to find the de-
ftndant guilty of an assault with deadly
weapon, you must be satisfied with the evil
dence, beyond reasonable dsubt, that he
did, with a deadly weapon make such as
sanlt with the felOnious intent to produce
great bodily injury. If you find, you
will declare it accordingly in your verdict.
And, again, if you are not entirely salts
fled TO moral certainty and beyond all
reasonable doubt that he is guilty either of
an assault with an intent to commit murder,
or of assault with a deadly weapon, which
have just explained, you will then inquire
if he has committed an assault upon the
witness, NJ. II. De Young, by unIawfully at
tempting to do that person an intentional
and violent Injury while having the present
ability to commit such violent injury.
The same degree Of proof and the same
certainty are essential to satisfy you of the
guilt Of the defendant upon each and either
of the Otfenses Included i'll the main charge
alleged i'll the informs ton against him.
If, in your consideration of the facts
i'll evidence, you shall determine that the
defendant is guilty, but that you then have
doubt as to which of any two of these
offenses should be found, then in that case,
if there be no remaining reasonable doubt
of guilt, your verdict must be of the lesser of
such two offenses considered.
Whenever you are thus satisfied of the de-
PENDANTS guilt, it will be your duty to con-
vict him of whatever offense you fully and
beyond reasonable doubt believe him to have
committed.
The quality and essence of this degree of
doubt are embraced i'll this definition which,
during a genera ton, has received almost
universal sanction in the courts of our
country, aud is authority in this State,
namely:
1t is not mere possible doubt, because
everything relating to human affairs and
depending upon moral evidence is open to
some possible or imaginary doubt. 1t is
that tate of the case which, after the entire
comparison and consideration of all the evil
dence leaves the minds of the jurors in that
condition that they cannot say they feel an
abiding conviction to moral certainty of
the truth of the charge"
Possibly this exposition may be suffi cient
for your guidance; but 1 deem it proper to
say, also, that reasonable doubt should
never be measured by quantity. Whether
it is produced by conscientious disbelief,
generally, or causes the judgment of the
juror to hesitate in anxious uncertainty
upon the slightest material fact necessary
to conviction, the law makes it substan-
tial and insuperable barrier between inno-
cence and guilt.
The reason for this perfect suffisisncy of
proof required to justify conviction is
founded upon the statute which declares
that "a defendant in criminal action is
presumed to be innocent til the contrary
is proved, and i'll case of a reasonable doubt
whe Their his guilt is satisfactorily shown he
is entitled to an acquittal.'
Therefore, to warrant conviction of the
defendant of the crime with which he is
charged or of any lesser offense, the facts
shown in evidence must not only be con-
sistent with the theory of his guilt, but in
consistent with any other rational conclu-
sion. In considering the facts and circum-
stances i'll evidence, it is your duty to weigh
every hypothesis suggested by defendants
counsel, and every hypothesis conceivable
by them, although not suggested, and see if
they will account for the circumstances i'll
proof upon the theory of the innocence of
the defendant. But "the degree of certainty
which justities conviction, termed moral
certainty, does not amount to demonstrative
certainty Of guilt or that certainty which
necessarily excludes the possibility of inno-
cence; on the contrary, it supposes and
consis is entirely with the possibility of in
nocence, and is itself nothing more than
the comparatively, measurable, limited de-
gree of certainty that convinces and directs
the understanding and satisfies the judg-
ment of those who are bound to act con-
scientiously upon it-a certainty of the
guilt of the accused not at all beyond all
imaginary or possible doubt as I have