The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1889-07-13
SUPREME COURT.
JULY TERM.
FRIDAY, July u.

hO OOu1G Op0ueu al III o CLOCK a. N
Inc King VS.. j. R. Robertson. AS
sault with a dangerous weapon. This
case was tried at the January term, when
alury returned a verdict of guilty. A new
trial was afterward granted which was
heard this day.
Only half an hour elapsed in arrang-
ing the jury. There were no challenges,
but three of those first drawn, VIZ: ].
w. Mcdonald, J. II. Fisher and &c.
Rowe declared that they had formed
opinions regarding the guilt of the
accused, and were therefore excused by
the Court.
Three other jurors, viz: Geo. Koch,
John Buckley, and Elias Peck, then
took the places of those who had re-
tired; and at 1O:30 a. IN. the following
jury were sworn to try the case: Geo.
Lucas, jr., D. 7. Bailey, G. w. Gray, F.
ID. Wicke, John Grace, j. E. Bidwell, J.
A. Gilman, E. 0. White, E. L. Lewis.
Geo. Koch, John Buckley and Elias
Peck.
The witnesses called by the prosecu-
ton were Drs. R. McKibbin and g.
Trousseau, John II. Soper, F. w. Fehl-
behr, j. Graney, Roney and A. Camp
bell. A native named Keloa was to also
have been witness for the prosecution
but he YVES non est. A double barreled
gun was shown as evidence
Angus Campbell was afterward re-
called by the defence.
Mr.. w. A. Whiting for the prosecution
stated the case for the Crown, and then
called DIR. Trousseau who was the first
witness sworn.
The evidence is very lengthy; and, as
most OF the facts came out at the pre-
vious trial, we omit the repetitions; but,
in place thereof, give in full the Courts
charge to the jury wherein reference is
made to the most salient points of the
evidence given at this trial.
w. A. Whiting and A. P. Peterson
were attorneys for the prosecution, and
A. S. Hartwell and Paul Neumann were
attorneys for the defence.
A recess was taken from II noon until
l p. NJ.
When all the evidence had been taken.
and the cause had been argued by the
attorneys on both sides, the Court
charged the jury as follows:
''The Court has no doubt that the jury
will consider this case entirely apart
from anything except what has been
heard here.
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.
It is necessary for the prosecution to
directly show that there was no justif-
cation. Altogether it is matter for the
defence to show that there is justifca-
ton. That is the law by our statutes,
the same as in murder.
I 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
committed as 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 case of homocide 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. 1t 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 ofense 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.
The law of self-defense has been set
forth in this country as in the case of the
King VS.. Bridges (His Honor here read
the case referred to-. There was no
second assault by Magoney on Rob
ertson.
The first afray in the house is divided
off from the transactions after occurring.
Undoubtedly Robertson suffered some
of that injury or in consequence of the
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 as an Interpretation of the atti-
tude 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 a 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
he had before made; and the principle
which gave you first applies here, that
his anger would not be a justification on
which he could be acquitted. 1t might,
however, be an extenuation with the
Court were he convicted. If he had
suffered damage or wrong, he had re-
course to the law. He could not account
for the first ARRAY being justification in
making an assault upon Magoney, if he
did make it.
Considering whether Robertson was
in such position that he might justif-
ably use this weapon, you must also
consider the protection which the de-
PENDANT had from others. That is an
important consideration. l think no
one would say chat 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 defendant-Reney
and Angus Campbell. They, one OF