The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1891-04-28

OPINION OF THE COURT BY DOLE, J.
The defendant demurred to an in
dictment charging him with perjury
in the first degree, committed as
witness in the examination of one
All Wal, upon a charge of arson, be-
fore William Foster, Esq, Police
Justice of Honolulu.
The first ground of the demurrer
relating to the oath alleged to have
been administered to defendant, is
identical with the first ground of de-
murrer in the cases of the King VS..
Angee and the King vs.. Ahung-
the defendants in which cases being
also indicted for perjury alleged to
have been committed in the examin-
alton of said All Wal for arson,
which point has been overruled by
us in our opinion filed April Nth,
1891. Upon the same reasoning, we
override the first ground of demur
er in this case.
The second ground of demurrer is
as follows:
at does not appear from said in
dictment, that the facts or allega-
tions to which, as said indictment
charges, this defendant falsely swore,
as therein set forth, were material to
the issue then pending, as described
in said indictment"
The issue in the proceedings in
which the perjury is charged to have
been committed, as set forth in the
indictment, is as follows: =" Said All
Wal on, to wit, the 28th day of July,
1890, and in the night time of said
day, did unlawfully, wilfully and
maliciously set fire to and burn the
dwelling house of one Ahung, stu
ate in Honolulu aforesaid, which
said dwelling house was then and
there occupied by and had as its in
mates said Ahung and others" This
is alleged to be material fact to
be proved" in such proceedings.
The allegation of the false statement
made under oath by the defendant
with the assignments of perjury
thereon are as follows; "That he, the
said All Fook, was in bed on the
night of said July 28tb, 1890; that
he, said All Fook, heard of fire; that
he, said All Fook, ran down in side
lane leading to one Angels yard;
that said All Wal was the first per
son he, said All Fook, met as he got
into the lane; that said All Wal ran
past him, said All Fook; that he,
said All Fook, knows said All Wai
quite well; that he, said All Wal,
was foot from him. said All Fook;
that he, said All Fook, kept on in the
said lane to the fire; that said fire
was in the corner of said Angels
building near the gate; that the
blaze was higher than a mans head;
that the battens of the floor were
scorched; that it was between two
and three o'clock in the night.
Whereas in truth and in fact the
said All Fook did not meet said All
Wal in said lane; that said All Wal
did not run past him, said All Fook,
and was not one foot from him, said
All Fook, and whereas in truth and
in fact said All Wal was not there
present on that said night, all of
which the said All Fook then and
there we'll knew"
There does not seem to be any
thing in this allegation of the defen-
dant's false statement under oath,
which is pertinent to the issue
of the proceedings in which it
was given, or, tends circumstanti-
ally to the proof of the material
fact to be proved" in those proceed
ings. If it is true that defendant
made this statement under oath at
that examination, there is nothing
in it that affects the case in point;
for the circumstance of the defen-
dsnt's meeting with All Wal in a |
lane leading to Angels yard has no
significance in the premises without |
some further information as to the |
distance of the place of this meeting |
from the fire; neither has the other |
circumstance that All Wal was run
ming at the time any value for the |
same reason. The place where de- |
PENDANT met All Wal may have been |
mile or two miles or further away |
from the fire, so far as we are in |
formed by this alleged false evil
dence, and there are no further |
statements which connect this evil |
dence about All Wal with the issue |
in the proceedings in question. We |
think that the reference to All Wal |
is too uncertain and too remotely re-
lated to the material fact to be
proved, to be regarded as material, |
and therefore snstain the demurrer
on this ground.
The third ground of the demurrer
in different shape raises substanti-
ally the same points that are disposed
of under the second ground of de-
murrer.
Deputy Attorney General Creigh-
ton for the Grown: @. W. Ashford
for defendant.
Al 7AAI 7OQ1