The Hawaiian gazette., 1889-03-05

/ he was not disqualified rs q witness.
The prisoners counsel asked the
court to charge the jury rs follows:
"1st. To Justify the inference OF
! legal guilt from circustantial evidence
/ the existence of the inculpatory facts
must be absolutely Incompatible with
! the innocence of the accused and in
capable of explanation upon any other
reasonable hypothesis than that Of
! guilt
This instruction was refused and
/ the ruling excepted 10.
This instruction seems capable of 4
meaning, by n refinement of inter-
probation, that would correctly state
/ the law, but it is undesirable To in
struct u jury through language diff
cult of comprehension or capable OF
several meanings or tending to men,
I tai confusion, and it was not only
proper for the court but il was its
| duty to refuse to give the instruction
in the form asked.
The marginal notes to the instruc-
ton in the handwriting of the presid-
ing Justice, and w}.>s,h are before US
! rs part of the bill of exceptions, are
as follows: mot in this form-but
will charge on reasonable doubt COW
ering this At the request of the
prisoners counsel the court charged
the jury as follows, which includes
some slight notifications of the in
structions prayed for.
TO convict, the jury must be sat
isfied from the circumstances that the
defendant is the person by whom the
death of the deceased was caused"
of the jury believe that the evil
dence is insufficient TO bring the act
home 10 defendant they must acquit."
"The presumption of innocence
always prevails in favor of the de-
PENDANT; Crown must prove their
case"
at is fairly within the province of
the jury to adopt Il theory of the cause
of death of deceased other than that
offered by the prosecution
draw their conclusions from the evil
dencen
The bill OF exceptions does not
report any part of the charge of the
court except that portion given ut
the request of prisoners counsel.
1t seems to us that it was in
cumbent upon him to place in the
bill of exceptions the instructions
given by the court in lieu of this first
instruction which was refused, or else
to show that no instructions whatever
were given covering the ground
raised by that instruction, and that
such failure was excepted TO; ne has
done neither, and we do not find that
this instruction was improperly re-
fused. An instruction to the jury in
these exact words was held erroneous.
in People as. Murray, II Cal, 81. See
Rer rs. Ah0pa, January Term, 1889.
The prisoners counsel also requested
the court to give the following in
stTuction which was refused and re-
fusal excepted to.
Circumstantial evidence is to he
viewed with distrust and to justify
conviction on such evidence, it is nee
essary to exclude every possible by
pothesis of innocence
The Court properly refused to give
this instruction for it does not state
the law. If it had read "every rcu-
SOHdblc hypothesis of Innocence in
the last part, it would have been
correct instruction. The following
sentence from BfOUH rs. State, 105
Ind, 3S5, clearly and briefly sets forth
the rule: "When the facts proved are
susceptible of explanation upon no
reasonable hypothesis consistent with
innocence, and point to a guilt be-
You'd any other reasonable solution,
then they are sufficient to rest a con-
viction upon, although the crime is
of the utmost malignity and the pen
atty attached is the highest known to
the law"
We therefore overrule all of the said
exceptions.
The bill of exceptions further recites
that the Jury returned unanimous
verdict of guilty, to which counsel for
defendant duly excepted, as being
contrary to law and the evidence, and
gave notice of motion for new trial as
will appear by reference to Exhibit
Z, which is hereto attached and made
part hereOfn The notice set forth in
Exhibit f, is as follows: 4" Now
comes the above named defendant by
his attorney, \. Rosa, and excerpts to
the verdict of the jury as being con-
traTy to the law and the evidence,
and gives notice of motion for new
trial" On November 10Th, the pris-
Oners counsel filed in the said cause,
in the same Court that had tried the
case, the following motion for new
trial: "Now comes the above named
defendant, by his attorney, a. Rosa,
and moves the Court to grants, new
trial in the above entitled cause on
the ground of newly discovered evil
dence." This motion is unaccompa-
MED with atfidavits, and is not adj
dressed to or filed with the Clerk OF
the Supreme Court, as it should be,
under the authority Of King rs.
Reeves. There is no motion for new
trial on the ground of the verdict be-
ing contrary to the law and the evil
dence, according to the notice above
set forth. 1t does not, therefore, APP /
pear that any motion for a new trial
i before the Court, nor anything fur
Their under the bill of exceptions.
\. P. PetersOn-DepUtY Attorney
General, c. Creighton with him for
the prosecution; y. Rosa for de-
PENDANT
Honolulu, Feb. Is, 1889.
THE BANANA TRADE.