The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1889-07-18
CHARGE OF THE COURT IN THE
ROBERTSON CASE.

heard here.
I charge you that when the assault is
proven the inference of the law is that
it is what is called malicious, and that it
is for the party defending to establish
his justification.
1t is not necessary for the prosecution to
directly show that there was no justiti-
cation. 1t is matter for the de-
fence to show that there is a justifica
ton. That is the law by our statutes,
the same as in murder.
| have considerable to say about the
difference between justification and ex-
tenuation. There is the same general
rule of law for justification OF self-defence
as to an assault upon another just as in
murder.
There is this important difference in a
case of murder and case OF assault.
If this were a case of homicide and
charged as murder, then the circum-
stances of extenuation such as the pre-
vious ARRAY might reduce murder to
manslaughter in the first, second or
third degree. IL might extenuate it
very much and alternate it down
to something OF light char
acter; but, in the case OF this assault
and battery, the verdict must be guilty
or not guilty. You cannot find him
guilty OF any offense less than this. He
must be justified altogether or he must
be found guilty.
1t is not for you to consider the matter
of extenuation. That is for the Court to
consider, if there is a conviction.
The law OF self-defense has been set
forth in this country in the case OF the
King VS.. Bridges (His Honor here read
from the case referred toy. There was no
second assault by Magoney on Rob
ertsOn.
The first ARRAY in the house is divided
off from the transactions afterwards
occurring. Undoubtedly Robertson
suffered somewhat severely in the assault
on him in the house. Was it in conse-
QuenCe of thatinjury or in consequence of
the anger which 1t excited in him that he
made the assault. He was not justified
in making this assault on Magoney. 1t
would not be self defence against that
attack, and it is therefore not to be con-
sidered except as an Interpretation of the
attitude of the parties. His anger against
him would not justify him in assaulting
him. There must be something in the
second transaction to justify that. There
must have been necessity in the trans
actions after the first, in the action of
Magoney, to justify the assault of Robert
son.
The act OF Robertson must be judged
by what appeared to him then and there.
Of course, the threatening attitude OF
Magoney could be coupled with threats
lie had before made; and the principle
which gave you first applies here, that
his anger would not be a justification on
which ne could be acquitted. 1t might,
however, be an eXtenuation with the
Court were he con, icted. If he had
suffered damage or wrong, he had re-
course to the law. He could not on &C.
count OF the first afray be justified in
making an assault upon MagOney, if he
did make it,
Considering whether Robertson was
III such a position that he might justii-
ably use this weapon, you must also
consider the protection which the de-
PENDANT had from others. That is an
important consideration. | think nc
one would say that any one now in this
room would be justified in using fire.
arms against another individual to pro-
tect his life. There is sufficient protec.
ton here.
The evidence is that certainly there
were two men at hand, two men Of
friendly disposition to ACKNOWLEDGING
and Angus Campbell. They, one OF
both, would have been able to protect
Robertson. They had not saved him
from the first sudden encounter, but
could have saved him from the last.
You are to consider whether there was
an everything necessity on the part OF
Robertson to save his life by shooting
Magoney. You will consider whether
from the whole evidence, Robertson adj
vanced or retreated in this case. The
law says he must get out of the way il
he can.
There is great deal of evidence as to
whether there were two shots or one.
and that bears in two directions.
1t is argued by counsel for the defend.
ant, that If there were two shots fired
one was shot from distance, and it was
not uficient-therefore there was a
justification in firing again. On the
other hand there is the view that it was
a continued aggravated attack of Rob
ertson by firing one shot and then an.
other shot. You have to consider
whether MagoneY was in the attitude Of
going to assault Robertson.
1 think the argument that Robertson
was defending his habitation, is not
applicable here. There was no attempt
to break into the house. It is to be con
sidered whether there is any proof that
Magoney was making, or about to make
an assault on Robertson. Upon the
point of the two shots you have the evil
dence of these two men who were there
they say there was but one shot.
On the other hand there is the evil
dence of the two physicians who had
charge Of Magoney in the hospital, that
there were shot more or less from his
head to his feet-scattering shots-and
it is submitted TO you whether it were
possible for the charge which was con
centrated in his arm, at the same time
to scatter from his head to his feet.
There is evidence in the examination
of the gun and its appearance which
were testified to positively, and you vii
consider the circumstance that Robert
son called on them to examine it at the
time.
do not think that you could assume
that Robertson was under fear of knife
upon the supposition merely that Ma
gony had gone to the place where there
were knives.
leave the case, gentlemen, withou
further instruction or charge. You mus
acquit or find guilty land there are no de
grees. There must be a justification by
self defence or he is guilty. 1t is not
matter that you can reduce by extenu
alton"