The Hawaiian gazette., 1893-08-01
statute in such csse made and pro


wsiisn by birth, of Honolulu, in the
island of Oahu, at Honolulu, in the
island of Oahu. snd within the juris
diction of this Honorable Court, on
on the eighteenth day of March in
the year of our Lord one thousand
eight hundred and ninety three, with
force and srms feloniously, wilfully
snd of his deliberate premeditsted
mslice sforethought did kill and
murder one d. L. Huntsmsn, and did
then and there and thereby commit
the crime of murder in the first de-
! gree, contrary to the form of the sts-
tute IN such case made and provided.
Then follows smother count specify
ing substantially the shooting by the
| defendant of Huutsmsn, on the 18th
Of March, with s pistol, snd thereby
inficnug mortal wounds of which
auntsman did suffer and lsnguish,
and lsnguishing did live to the 10th
of March, when he died. BY the su-
! thority of Sec. Is of the Criminal
Procedure Act, p. 342 Compiled Laws,
| the first count would be sufficient.
This statute says that lit shall not be
necessary to set forth the manner in
which or the means by which the
desth OF the deceased was caused,
but it shall be sufficient in any in
dictment for murder to charge that
the defendant did felonionsly, will
fully and of his malice aforethought
kill and murder the deceased" The
statutory essentials were strictly fol
lowed, adding only the ingredient
made necessary by the Act of 1890,
Chsp. LXAI., that the malice was
deliberate premeditsted," in order
to charge murder in the first
degree. The addition of the second
count which merely gives particulars
does not yitiate the Indictment, and
it was more advantageous to the de-
fendsnt to spprise him by the plead
ings of the particulars which the
prosecution expected to prove. There
being no variance between the two
counts nor alleged to be in the evil
dence there was no occasion for the
prosecution TO elect upon which It
would proceed, nor was 1t error for
the jury to have rendered 8 general
verdict.
Sixth. The demurrer having been
overruled and excepted to the de-
PENDANT was asked to plead but pro
tested against his being required to
to do so while his exceptions to the
overriding Of the demurrer were
pending aud undecided and, on this
objection being overruled, defendant
excepted. Exceptions to the over
ruling Of d demurrer have never
formally been held to suspend the
trial though instances may be cited |
where this Court has entertained |
such exceptions before trials on the /
merits. It viii be found that the !
prosecution has in such cases either |
consented to this procedure or it has
been unnouced by the Court. The !
general course has been to have the |
exceptions noted and proceed with |
the trial. and this course as we have |
remarked in several cases recently !
decided. Prov. Govt. IS. Smith. Prov. |
Govt. vs.. An On and Brown rs. Car
Yslho is the best course and We gd- |
here to it. We see no error in the
Courts ordering the trial to proceed.
Seventh The next point is an
exception to the Courts ordering
the plea Of not guilty" to be en-
tered, the defendant standing mute
and refusing to plead. This was the
proper course and followed the sta
tute, it being discretionary with the
Court See Sec. Sc Criminal Proce-
dure act, p. 34S Compiled Laws.
Eighth. During the trial wit.
ness, Geo. Kuoha, was called for the
and q foundation having
been laid, his testimony and yeracity
we're sought to be lmpeached by evi-
ience Of different statements made
Jy him in the District Court of Homo
ulu at the preliminary examination.
The objection is made that the Ma
yistrate read from notes Of Kuoha's
evidence made by him at the time it
vas delivered, the evidence being
given by kuoha in Hawaiian and in
into English by Thompson.
he Court Interpreter We find from
he evidence transcribed By the
'tenographer that before the Magis-
rate read any part Of his notes, the
Thompson, was sworn in
he case and testified to the
ury, OF his own recollection.
that the witness had said in the
District Court, and that thereafter
be Magistrate resumed the witness {
tand and read such part OF the notes
T Kuohs's evidence as was requested.
hitch agreed substantially with what J
be Interpreter had testified to.
therefore, there Is 10 occasion for US
} say what our view would be in
3se the Magistrate had merely read
rom his notes evidence given to him :
: an inte-preter-the interpreter I
ct being called or testifying.
Ninth. The trial Court admitted 4
evidence the so-called dying =
made by the deceased y
antsmsH, as to who his assailant | 4
IS and other circumstances. This i
Is objected to. in that Ii did not / 4