The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1889-07-16


the assault. lie was not justified
in making this assault on Magoncy.
1t would not be self defense against
that attack, and it is therefore not
to be considered as all 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 transac-
ton 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
Robertson.
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 he
had before made and the principle
which l gave you first applies here,
that his anger would not be justi-
fication on which he could be acquit-
ted. 1t might, however, be an ex-
tenuation with the Court were he
convicted. If he had suffered
damage or wrong, he had recourse
to the law. He could not account
for the first affray being a justitica-
ton in making an assault upon Ma
goney, if he did make it.
Considering whether Robertson
was in such position that he might
justitiably use this weapon, you
must also consider the protection
which the defendant had from
others. That is an important con-
sideration. l think no one would
say that any one now in this room
would be justified in using firearms
against another individual to pro-
tect his life. There is sufficient pro-
lection here.
The evidence is that certainly
there were two men at hand, two
men of friendly disposition to de-
fendant-Reney and Angus Camp
bell. They, one or 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
were an overriding interest on the
part of Robertson to save his life in
shooting Magoney. You will con-
slider whether, from the whole evil
dence, Robertson advanced or re-
treated i'll this case. The law says
he must get out of the way if he
can, before he makes the assault, and
certainly, in the case of homicide,
takes life.
There is a great deal of evidence
as to whether there were two shots
or one, and that bears in two direc-
tions.
1t is argued by counsel for the
defendant, that if there were two
shots fired one was shot from a dis
lance, and it was not sufficient
therefore there was justification in
firing again. On the other hand
there is thc.view that it was con-
tinued aggravated attack of Robert.
son by firing one shot and then
another shot. You have to consider
whether Magoney was in the attitude
of going to assault Robertson.
! / think the argument that Robert,
son was defending his habitation, is
not applicable here. There was nc
attempt to break into the house. II
is to be considered whether there is
any proof that Magoney was max
ing, or about to make an assault on
Robertson. Upon the point of the
two shots you have the evidence o.
these two men who wereethere; they
say there was but one shot.
On the other hand there is the
evidence of the two physicians who
had charge of Magoney in the hos
pital, that there were shot more o.
less from his head to his feet-scat
tering shots-and it is submitted t.
you whether it were possible for the
charge, which was concentrated il
his arm, at the same time to seattle
from his head to his feet.
There is evidence in the examina
ton of the gun and its appearance
which were testified to positively
and you will consider the circum
stances that Robertson called Of
them to examine it at the time.
do not think THAT you could as
sumo that Robertson was under fea
of knife upon the supposition tina
he had gone to the place where Their
were knives.
am inclined TO leave the case
gentlemen, without further instruC
ton or charge. You must acquit q
find guilty, and there are no dc
grees. There must he a justiiic1
ton by self defense or he is guilty
, 1t Is not matter that you can re
duce by eXtenuation.
The jury retired at A p. IN. to cor
slder their verdict, returning at
o'clock with a verdict of "nc
guilty." two dissenting.