The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-06-09

against before Justice Dole yester-
day morning.
The Court adjourned shortly
after II o'clock, but His Honor did
not announce when his decision
would be given.
The prisoners were cheerful and
interested during the session of the
Court and all were dressed in their
Sunday clothes on the occasion of
the last day of the trial.
ADDRESS OF Mr.. HARTwELL.
May it please the Court: This Court
in overruling the defendants demurrer
to the charge as specified, and in deny
ing their motion to dismiss the case on
the evidence presented by the prosecu-
ton, ruled in substance that the charge
sufficiently states case in law, and that
in law there was evidence tending to sus-
tain verdict of conviction. / do not
ask the Court to reconsider its rulings.
In reference to the contemptuous man
ner, however, in which the Deputy At
torney-General alluded to numerous
law points" raised for the defense, they
are the points which in substance have
been raised by eminent counsel in the
Courts OF England and the United States,
as for instance in the cases of the Queen
vs.. Meany, 10 Coz, C. c., and of the Queen
vs. Mulcahy, Eng. and Ir. app. cases.
Both of those cases were by indictments,
the one under the statute of George ILL.,,
and the other under the statute of IL
Wet, charging that the defendants COM
passed, imagined. devised and intended
to depose the Queen, and laid as an
overt act that they conspired and met
together, and also collected arms for the
purpose of carrying out the traitorous act
charged. In the case of the Queen vs..
Meany, the Court overruled the objec-
ton, but not without difficulty. Pigott,
G. B., remarking in regard to "com-
passing" "It is an act of the mind, it is
not a physical act, it is not an act to be
done at all except personally" and
anonther of the Judges, Fitzgerald, B.,
said las the crime consists in an act of
the mind or an intent only, some act
therefore by which the intent was ut
tered must be proved" In the Null
cahy case, Mr.. Coleridge, now Lord
Chief Justice of England, of counsel for
defendant, contended that under the
Statute IL Wet. it was not q sufficient
overt act to charge conspiring. The
Court there say, "as far as the question
depends upon the bare construction of
the Statute, it appears to admit Of no
doubt" and define conspiracy as "not
merely in the intention of two or more,
but in the agreement of two or more to
do an unlawful act" The Statute the
Court say expresses these words, ''If any
person shall compass and intend to de-
pose or destroy the King, and such COM
passing and intentions shall express, ut
ter or declare by publishing in print or
writing or by any overt act or deed, he
shall be adjudged traitor" Now this
Court in everything the demurrer and
motion to dismiss, expressed the view
that the mere intention to do the crimi-
nal act is not sufficient. dole, j.: Yes,
I hold that view.) The Court in further
commenting on that subject adverted to
our Statute as possibly ''antiQuated." /
do not propose to re-argue those ques-
tons or to ask for their reconsideration
now. If in the future there be occasion
to ask the full Court to reconsider those
views, should do 80, but as the Court
has based it's ruling rigidly upon the Ha-
waiian Statutes, ask the Court at this
stage of the proceeding to follow the
strict requirement of another Hawaiian
Statute, to which I shall refer. call
again to the attention of the Court the
fact that under our Statutes the commit
ting magistrate does not proceed as in
English and American practice. There
the examining magistrate takes the
evidence presented by the prosecution
only, and if it appears that there is prob
able cause to think that the defendant is
guilty, commits the prisoner, not for
trial, but to Jail, where he awaits the re-
suits of proceedings before grand jury.
The Statute of this country makes it
incumbent upon the prosecution, at their
risk-if they fail to do soto present be-
fore the committing magistrate the evil
dence on which they intend to rely Gin
case of an indictment being presented)
before jury. They may prefer to keep
back important testimony to use at the
trial before jury, but, if they do SO, it
is at the risk of the committing magis-
trate's deciding; that, upon the evidence
adduced, he is not satisfied that there il
reason to believe that conviction would
follow That is to say, the evidence
which has been presented by the prose-
cution and also by the defense, must
now be reviewed by this Court as q
whole. This Court is not at liberty to
look only at the testimony presented by
the prosecution to consider that evidence
as probably true, ard especially that
part of it which makes against these de.
PENDANTS, and ignore or forget the testi-
mony on the part of the prosecution
which is in favor of these defendants. It
must look at all the testimony.
These defendants have the right to do
az they have done by Article z of the
Constitution, which reads: "He shall
have the right to meet the witnesses
who are produced against him face to
lace to produce witnesses and proof in
his own favor; and by himself, or his
counsel, at his election, to examine the
witnesses produced by himself, and
cross-examine those produced against
him, and TO be fully heard in his own
defence" The statute (905th Section,
Compiled Lawsl says that: &c In all cases
OF arrest for crimes or misdemeanors
cognizable before jury, the magistrate
In whose Jurisdiction or on whose war
rant the accused was arrested, shall,
upon the bringing up of the accused,
proceed to consider whether there is
probable cause to believe that a jury
would, upon the evidence adduced, con-
vict the accused of the ofense with
which he is charged" necessarily mean
ing upon all the evidence, and not upon
that portion of the evidence presented
by the prosecution. said Justice shall
reduce to writing the substance of the
evidence adduced, with the names of the
witnesses; and if, in his opinion, the
testimony do not warrant commitment