The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1889-01-25
THE WAIALUA ASSAULT.
Proceedings for n New Tria1-Afidavits
and COunter-Afhdavits.


| and Counter-Amdavits.
In the Supreme Court yesterday morn
! ing, before Mr.. Justice Bickerton, in the
case Of J. r. Robertson found guilty Of
assault with deadly weapon by Jury
the following motion was made for a new
trial:
And now comes the defendant bv Pau
Neumann, Noluey V. Ashton d a ID Gard
ner X. Wilder, his attorneys, AID moves
for new trial in the above cause, for
the following reasons:
/. On the ground that testimony was
admitted from DR.. Mckibbin as to his
opinion Of the number of shots fired
said DR.. McKibbin not being first shown
to be an expert at cunning, or in resist
anCe to gun shots, or in the cause and
effect OF spent shot, and the said testi-
mOny being based upon the effect of the
shots upon the body OF Magoney.
2. On the ground that the verdict is
contrary to the evidence adduced at the
trial.
3. On the ground of misdirection of the
jury by the Court in lnstrncting them
that they must find defendant guilty I'M
less it appeared from the evidence that,
before shooting, he had retreAted to the
by wall or some impassable barrier
Notwithstanding the evidence, even of
the prosecution, shows conclusiveiy that
the shooting was done from inside de-
PENDANTS own room, alter retreatlng from
the pursuit OF his antagonist, who came
at him with threats Of cutting his liver
out" and after defendant had twice
warned him, while retreating to his own
room, "dOn't come any further or I'll
shoot"
+. That aside from the principle in
Volved in the general doctrine of self de-
tense, there were elements in this case
which made it exceptional. The evil
dence shows that the defendant was de-
Tending his dOmicile, his home, as well
as his person, and that he was in fear Of
his life, from his pursuer. A mans
house is his castle, and it devOlved upon
the Court to correctly instruct the jury,
under the particular circumstances OF the
ease i. e. as to a mans right TO defend
himself from attack in his own house
hO.d, which the Court failed to do
3. On the ground of misconduct of the
Jury: in that certain OF the jurymen, to
wit, j. H. Black and l. 4. Burgett, stated
on their vOir dire that they had never
entertained or expressed any opinion
upon the matter before them or any
statement hostile to the defendant there
in; whereas in truth and fact they had
expressed such hostile opinions, and
were at the time of said trial entertain
ing feelings of bitter hostility to the de-
fendant herein, and had prcjudged said
defendant and declared him guilty in adj
vance of the trial; none OF which said
aforementioned facts were known to the
defendant or mis- attorneys until after the
trial.
This motion is made upon the affida-
Wits of J. G. Cluney and John NJ. Nivas,
aud also of the defendant and of his said
attorneys, Paul NeumanD, NOlney Y.
Ashford, and Gardner K. Wilder, all OF
which are on file herein; as we'll az upon
the records and proceedings which form
a part of this cause, and such other and
further facts and circumstances, herein
relevant, as may be presented at the
hearing of the said motion.
Dated this 22d day OF January, 1889.
PAUL NEUMANN,
NoLNEY Y. ASHFORD.
GARDNER 4. WILDER.
The affidavits were all read by Col.
Ashford.
Deputy Attorney-General Peterson
read the affidavit of l. A. Burgett in
which he states he had no recollection OF
any such conversation having taken
place, and had used no such language;
that he was unbiased at the time of the
trial. A similar affidavit was presented
on behalf OF j. IL Black, but it was not
signed owing to Blacks absence.
Hon Paul Neumann said that both
Black and Burgett say they have
no recollection OF any conversation
taking place az stated in the. aft
davits OF Vivas and Quincy, and
he thought they were unfit to sit as
Jurors. Il was not the first time that
Jurors had taken their seats and sworn
they were unbiased when they were not
so. Where a mans liberty is concerned
the least the Government could do under
the Constitution was to give fair trial.
Under the circumstances he thought the
defendant had not had a fair trial. The
law laid down in Bridges case could not
be applicable in this case. The state
ments of Vivas and Cluney were OF them
selves enough to grant new trial. The
haste with which the jury gave their YER
diet was almost indecent. The Court in
furtherance of justice should allow a new
trial so that the law could be laid down
reasonably applicable TO this case.
Mr. Whiting Tor the Crown thought the
affidavits of Nivas and Quincy not en-
tirely satisfactory, and took exception to
their form as being indefinite.
Mr.. Neumann refuted the state ment
that the affidavits were not specific
enough. He claimed they had not been
denied.
HIS Honor said remarks had been
made as to the haste of the jury, but the
Court did not intend to decide hastily on
this motion. The grounds of the motion
were all overruled with the exception Of
the misconduct of the iurV which was a
serious question, and which should be
given a serious consideration. Every
man had a right to have an unbiased
jury. The affidavit of Cluney must be
presented to him in due form so that he
could give the matter proper and fair
consideration He would endeavOr to
look into the case that day and present
his final decision il possible on Friday
morning.
Police Court.