The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1891-08-11

OPINION OF THE COURT PER BICKERToN, J.
EIhe defendant was tried at the
last February term of the Fourth
Judicial Circuit, being charged with
larceny Of horse; the jury returned
a verdict of guilty; motion for
new trial was filed, and now comes
here to be heard. There is no bill
of exceptions on file, so the matter
rests simply on the grounds set out
IN the motion. First, because the
Court admitted testimony on the
part of the prosecution to show the
value of the animal alleged to have
been stolen, there being no allega-
ton Of value which was a necessary
element In the charge, which was
under a special statute and not
under the general law of larceny"
Second, that the trial of the said
case was illegal, because that one of
the witnesses for the prosecution,
Kalaluhi (k.), was sworn and testi-
fed while one of the jurymen was
absent from the jury box"
Third, that the defendant since
the said trial has discovered new
important and material evidence"
Fourth, that there was miscon-
luct on the part of the jury"
Defendant was charged under the
Act of 1876, Section II, which pro
vides a penalty for the larceny of
cattle, horses, etc, not exceeding
the value of one hundred dollars.
This Act amends the Act of 1870,
amending Section II Chapter Is of
the Penal Code. We hold that it
was not necessary to allege the value
of the horse stolen, the fact that de-
fendant was charged under this sec
ton was in itself an allegation that
the value of the horse was not over
one hundred dollars.
Where a specific charge was made
In the lower court and defendant
brings the case up by his appeal, the
presumption is it is the same charge;
the Court was right in allowing evil
dence as to the value (which was
shown to be fifty dollars)this brought
the case within the law, under which
the charge was made. We therefore
override the first ground.
The second ground. The affidavit
does not support the grounds taken.
Counsel claims that the witness was
sworn and testified during the alb
sence of one of the jurors, the coun-
Wells own affidavit says " the witness
Kalaluhi (k) on the part of the
prosecution was sworn, and the
Court by Chief Justice Judd, ordered
the witness not to testify as one of
the jurymen was absent from the
Jury box" Even if this was so, could
it be contended that the defendant
was thereby prejudiced in any way?
It is a general rule, that new
trial will not be granted for an en-
tirely harmless error. Motions for
a new trial are addressed to the
sound judicial discretion of the
Court, and ought never to be granted
except to subserve the purposes OF
substantial Justice. billiard on New
Trials, page 49, We also override
this ground.
Third ground, is supported by the
affidavit of Mr.. Rosa as to what a
witness named Joe told him after
the trial. There is a counter affidavit
of the man Joe in which he denies
the statement of Mr.. Rosa and says
that all he knew about the case was
what he had given in evidence before
the court at the trial, and that that
evidence was the truth" In the face
of his former evidence and the
affidavit, the man could not change
his testimony even if new trial was
granted. This ground is overruled.
Fourth ground, is supported by
the affidavit of one r. Gerke as to
a conversation with Peter Nowlein,
foreman of the jury This is met by
the counter affidavit of Peter Now
lein, in which he denies having had
a conversation with Gerke. and de-
MES everything contained in his
(Gerke's) affidavit.
a new trial is refused and the mo-
ton denied.
Attorney General Whiting for the
Crown; A. Rosa for the defendant
Honolulu, July 9th, 1891.