The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-02-05

this hook. It would not have cut
the bone; the wounds would all have
been well in a week. I could not
find any wounds which would harm
anybody so far as life was con
cerned."
The identity of the defendants
with those tried for and acquitted
of the murder of Lum Yum Kun was
proved and the only issue is whether
the act upon which the indictment
for murder was based is the same as
that upon which the present indict-
ment for arson is based. The de-
PENDANTS attorneys rely upon arti-
Gle s of the constitution which pre-
scribes that mo person shall be re-
quired to answer again for an ofense
of which he has been duly acquitted"
The testimony of the physician
and of others who saw the person Of
Lum Yum Kun soon after the fire
leaves no room for doubt that he
came to his death by the burning Of
his body from the fire which con-
sumed his house. The wounds in
ficted upon him by weapons of
some character were not sufficient to
cause death. Having come to this
conclusion it is not necessary to dis
cuss the various theories by which
the wounds and the burning upon
the body of Lum Yum Kun might
have been produced or how the
house was set on fire. We under
stand that The case sought to be
made against these defendants by
the crown was that they killed the
deceased by setting fire to the
house IN which he was, which fire
burnt his body so that he died in
consequence. The statute of 1876
does away with the necessity of DIES,
cribing in an indictment for murder
the means of death. But if the in
dictment for murder had set out the
burning Of the house as the cause of
death there would be little room
for doubt that the plea Of attire
f0is acqut to the Indictment for
arson in the first degree would
be held good. Aud we Can see no
difference whether this was set out
in the indictment or not The prose-
cutiOn would have to rely upon the
burning as the cause Of death, and
not upon the wounds made by
weapons. On a trial Of these de-
PENDANTS for arson, how could the
presence of Lum Yum Kun in the
house at the time of its being set on
fire be proved except by showing the
fact that he was found in a burned
condition near the spot just after
the fire? No one saw him In the
house at the time the house took
fire therefore the arson could not
be proved except by introducing
evidence which would show that
murder was committed. We say
then that the plea is good because
the evidence requisite to support
the second indictment must neces-
sarily have supported conviction
in the first" Wharton Grim. Pl. and
Pr, Section 1855. Where this plea is
made in any case, it will have to be
considered according to it's own facts
and circumstances, and it is difficult
to lay down any general rule that
will apply in every case. And many
decisions on this topic are apparently
conflicting because the facts in the
different cases are not the same.
The prosecution urges with en-
phasis the statute as found in Sec.
ton 3 of Chapter XLVI. of the Penal
Code, " Where the same Act consti-
tutes two or more diverse and dis
tinct ofenses, different in their
nature and character, one not being
merged in the other, the offender
may be proceeded against for each,
and cannot plead a conviction or
acquittal for one, in bar Of proceed
ings against him for She other" 1t
is our duty to give effect to this
statute if possible but if it should
conflict with Article s Of the Consti-
tuition, the statute must give way.
1t is easy to suppose case where
the statute would apply, and the
Constitutional provision not stand in
the way. Where a man, by the
firing Of a gun, kills A and also B,
the shooting is one act, but he COM
mits two homicides, and his convic-
ton or acquittal for killing A would
not be a good plea to a pro-
ceeding against him for killing
B. Illustrations might be multi
piled. In our case the act
charged against the defendants in
both indictments was one against the
life of a human being. They have
been acquitted of the charge of MUIR
dering Lum Yum Kun by setting fire
to his house. To charge them now
with setting fire to Lum Yum Kun's
house, he being an inmate thereof,
would be to charge them again with
substantially the same offense. We
therefore hold the plea to be good
and order the prisoners discharged.
Attorney General Whiting, A. S.
Hartwell with him, for prosecution;
p Neumann, A. p. Peterson and J..
M. Davidson for defendants.
Honolulu, January 2 1892.