The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1889-10-24

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others IN the basement. There is still
charge OF conspiracy pending against
| me.
To Juror-Wilcox did not tell US to
IRE the cannons. Wilcox did not tell us
any particular time to fire them. We
nred because We were fired at. Would
not have done so unless we had been
hred at. (Applause from spectators).
The Court-Am sorry that have to
speak to these people here, most of
whom, l believe, are out on bail for con
spiracy. 1t is very improper to give APP
plause, 1t is seeming endeavor to influ-
ence the jury. If repeated l shall have
oIncers to put such persons under arrest
Tor contempt of Court. May say, that
applause is intolerable to this Court and
will not be allowed. l do not wish to
speak again.
To the Court-Don't know how long
we were going to stay. Markham said
two days.
G. Schumann-Was on the corner of
King and Likelike streets on July 30th
ment. Sent by the captain of my COM
Rifles. Captain Mccarthy was my cap
thority of Hawaiian Government. [ saw
others going out so l went out too. got
into row with some native. | had
orders to prevent any one passing through
Llkellke street. Some one yelled from
palace to bring that man in. Wilcox
called out. A native fired a shot there.
The native was sitting on top OF the wall.
No guns were fired before that. Could
not tell direction gun was fired. Some
body took my rifle away from me and
then L was taken inside palace yard.
Wilcox spoke to me. He asked me what
L was doing there. Said 1 was acting
under orders of the Hawaiian Govern
ment to keep the peace He said he was
the Hawaiian Government. My cart
ridge belt was also taken away. Only
kept under arrest one hour, then was
allowed to 90 outside. Wilcox told me
to go out. During the time | was there
they were firing at the Music Hall. Will
cox went all over the yard. Saw him
firing off cannons. When | went out he
was sitting on back stairs.
Court now took recess until o'clock.
AFTERNOON SESSION.
The Court resumed at l o'clock and
the cross examination of witness was
commenced by Mr.. Kalua.
q. Schumann-I am not a police Off
GER; [ received my orders from my cap
tain do not know whether the govern
ment gave the orders or not
Juror Bipikane-Did your captain tell
the people they should clear away.
Answer by witness--I don't know, l
think so, that was nv orders.
Juror Bapikane-The road was a pub
lie road, who were the enemies that you
were afraid of, those inside or those out
side.
Answer of witness indistinct and in
definite.
Juror Bipikane now said, turning his
face to the audience: [ think this man
used his gun in a threatening manner
towards the people outside and that is
the reason why they caught him and
threw him over the wall. l think they
were right; (sensation).
Mr.. Hatch (rising quickly)-If your
Honor please, we feel called upon at
this stage in consequence of what has
been said by this juror to move your
Honor to- discharge the jury on the
ground of bias and misconduct.
Mr.. Rosa for the defense objected
strongly to the motion and considered
that nothing had occurred that should
disqualify the jurors; the defendant had
rights that he should be protected in,
and if the jury were now discharged it
would be equal to an acquittal.
Mr.. Hatch called the attention of the
Court to page $50 Mote y of Archibald's
Criminal Practice and read:
"The law has invested Courts of JUS
tice with authority to discharge a jury
from giving any verdict whenever in
their opinion taking all the circumstan
ces into consideration there is mani
fest necessity for the act, or the ends of
public justice would otherwise be de-
feated. They are to exercise a sound
discretion on the subject and when a
plea of discharge of the jury is imposed
under such circumstances, such plea will
not constitute a bar to further proceed
ings and will give no right of exception
to the prisoner from being again put on
trial."
Mr.. Hatch continuing, said in sub
stance that there was no doubt that the
Court had recognized the tone and man.
ner used by the juror, and further the
juror had stated his opinion, an opinion
which is not based upon the evidence.
That opinion must have been one which
he had formed and concealed; it seemed
to the speaker that the juror had en-
tered upon the case preiudiced.
Mr.. Rosa drew the attention of the
Court to Merriam on Juries, page 352
section 312 and read:
"When prisoner has been arraigned
and tried upon valid indictment he is
entitled to the verdict of the jury before
they are discharged"
The Acknowledgement called to the
notice of His Honor Article of the Ha-
Waiian Constitution which states that
''No person shall be required to answer
again for an offense of which he has
been duly convicted or OF which he has
been duly acquitted" He argued that
if the case had gone to the jury and
verdict had been rendered they could
not we'll revive it. The Court at any
time, he considered, had power to take
the case from a jury if it was found not
safe in the interests of justice to allow it
to remain in their hands. It was men,
toned to him just now by Mr.. Thurston
that on jury case before the late Judge
Harris the jury had even retired and
returned and on stating that they could
not agree, standing to 4, Judge Harris
promptly dismissed them from further
consideration of the case on the ground
that they had transcribed their duties as
Jurors by telling him the condition in
which they stood.
CHIEF JUSTICE JUDD's RULING.
The Court took commission as a
| Judge OF this Court from His Majesty a