The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-05-12
OPINION OF THE COURT PER JUDD, c. ]

OPINION OF THE COURT PER JUDD, {. j.
The defendant was indicted at
the Circuit Court of the Fourth Ju
dicial Circuit in February last for
the offense of malicious assault
upon female named Hama with
intent to commit rape, at Hanalei,
Kauai, on the 18th of May, 1891.
The Circuit Court was convened
on the 9th of February. The de-
fandent took out a subpoena TO; a
witness, DR.. Mitamura, on the 10th
February, which was served upon
him on the 18th. The case was
called for trial on the 18th. The
desired witness for the defense not
appearing, the attorney for the de-
PENDANT, w. o. Smith, Esquire,
moved the Court to continue the
case to the next (August) term.
The affidavit in support is as fol-
lows:
William 0. Smith, attorney for
the defendant in the above entitled
cause, on oath deposes and says
that one, DR.. Mitamura, residing at
Papaa, Kauai, is a material wit
ness for the defendant; that due
diligence has been exercised by
the defendants attorney, and by
the defendant himself, in the en-
deavor to procure the attendance
of said witness, by taking out
subpoena, to compel his attend
ance, on the 10th day of the pres
ent month; but the said witness
has not appeared and the defend
ant cannot go to trial and properly
defend himself against the charge
for which he is indicted in the alb
sence of said witness.
The Court refused the continu-
ance, to which defendants counsel
excepted. The case then went to
trial and the jury rendered a ver-
dict of guilty, to which defendant
excepted and moved for a new trial.
The bill of exceptions brings up
the single question whether new
trial should be granted on the
ground that the continuance was
refused.
We find from the affidavit of the
officer who served the subpoena on
DR.. Mitamura, that the witness
gave as his excuse for non-attend-
ance, that his wife was i'll and that
this illness continued up to the
date of the trial.
The defendants counsel stated
that the doctor had given evidence
on behalf of the prosecution on the
9th of June, 1891, upon a case
against this defendant, involving
the same state of facts, and he
therefore supposed that the prose
cution had subpoenaed the witness
to attend the Circuit Court on the
9th of February, together with the
other witnesses. He gives this as
a reason for not issuing a subpoena
earlier. We notice, however, that
DR.. Mitamura was not examined
as a witness in the proceedings be-
fore the magistrate for commitment
| for the crime for which he was in
dicted. Moreover, the illness OF
the doctors wife requiring his at
tendance being his excuse for non
attendance, it would have existed
as an excuse whether the sub.
poena was issued on the 10th OF
months earlier, and in this view
want of diligence should not weigh
against the defendant.
The objection made to the aft.
davit supporting the motion fol
continuance is that it does not SET
out the facts which the witness
would have testified to in order
that the Court might judge of then
materiality to the issue to be tried
Howard V. Hubertson, 1 Haw. 45
is authority that such an affidavit
should set out the facts the witness
is expected to prove. This was also
the opinion of Chief Justice Lee in
Walker V. Grimes, 1 Haw., So, and
was followed in re Will of Hewa.
hewa, 2 Haw., 165, and affirmed in
Napahoa V. Chinese Union, Z
Haw., $40. With so much prece,
dent of our own, we consider the
rule now well settled, and do not
consider it necessary to examine
the authorities cited for and
against the position by counsel fol
the defense and prosecution respec-
lively.
The granting or refusing a mo-
ton for continuance is within the
discretion of the Court. Kane v
Nakaleka, 7 Haw., 211. We look
into the matter only 50 far as to
ascertain whether the Court, in re-
fusing the motion to continue,
abused its discretion. We find it
did not. The exceptions are there
fore overruled.
| c. Creighton, Deputy Attorney
General, for prosecution w. 0.
Smith for defendant.
Honolulu, April Cd, 1892.
Girls Industrial Home.