The Hawaiian gazette., 1893-08-01

Deputy Mehrtens with Won Werthen
S friend appeared in company with
the hospital steward st his bedside.
he was in very weak condition
snd had frequent lapses into sleep.
! But when the Marshal told him he
had come TO take his statement he
reused and made his statement in q
weak voice, which statement was
taken down in writing He died
esrly the next morning. The inter
view lasted about twenty minutes.
As 1t was being concluded Mehrtens
shook hands with him and said
goodbye and told him to rest easy
and that he would come and see him
in the morning. To which Hunts.
man-after hesitsting moment said,
Il don't think you will see me in the
morning. To Won Werthen he gave
his books and requested him to send
/ his trunk containing his clothing
and other personal effects to his
mother, giving her name and address
in Haley, Idaho. We consider that
the trial Court committed no error in
holding that these facts showed the
/ belief of Huntsman that his life was
rapidly coming to an end and was
right in admitting his statements to
the jury as dying declarations
These declarations are admitted by
necessity to prevent murder going
UNPUBLISHED and form an exception
TO the rule which excludes hearsay,
and are not held to be in contraven-
ton of the constitutional principle
| TART. Z Const.) that the accused has
a right to meet his witnesses face to
face This constitutional ground of
objection was the tenth point made
by defendant in his bill of excep-
tons.
Eleventh. The defendant requested
the Court to charge that in order to
convict of either murder or man
slaughter under this indictment, the
Jury must be satisfied by the evil
dence, beyond a reasonable doubt,
that the deceased was not only shot
and wounded by defendant, but that
the medical and surgical attendants
Of deceased were guilty of no neglect
or unskillful treatment of him but
for which he might have recovered.
If the fact of his death did not result
wholly from the act of defendant,
apart from and unsided by any neg
lect or unskillfulness on the part of
the medical attendants of deceased,
then such death is not to be attri-
buted to defendant and he should not
be convicted of either murder or
manslsughter.
This was refused By the Court as
was also the next request which was,
Unless the jury are convinced be.
yond g reasonable doubt that the
death of deceased was in no way
attributable to any latent disease or
ailmeut contracted before, and apart
from the wounds mentioned in the
indictment, they cannot convict de
fsndant Of anything more serious
than assault and battery herein"
It was proper to refuse these re-
quests. Where the wound is adequate !
to produce death the burden does |
not rest upon the prosecution to
show that the medical and surgical |
treatment of the deceased was skill |
full and that his attendants were
guilty of no neglect or unskillful
treatment, or that the death was
wholly occRsioned by the act of de-
PENDANT and was in no way attribut.
able to neglect or unskillfulness of
his medical attendants or to any
latent disease or ailment contracted
before and apart from the wounds
in the Indictment The
say that 1T is immaterial
whether the medical treatment was
proper or mistaken, if it was EN-
ployed in good faith and with com
mon knowledge and skill. Thus
where the wound is adequate and
to produce death, it is
DO excuse to show that had
proper caution and attention been
given a recovery might have ensued,
Tor neglect or maltreatmeut will not
excuse, except in cases where doubt
exists as to the character Of the
wound. Kerr Homicide, Sec. 81, and
Dig. Or. l. 156. We do |
lot understand in this case there was
my proof Of neglect OF unskllfulness
n the treatment OF Huntsman's .
Wounds, one of which was certainly {
fatal, or that there was {
ny proof that he had any latent {
disease.
Twelfth. The Hawaiian jury rem q
Iered written verdict in their own t
% Ia hewa ka mea hoo :
lila no Ia lave ola ma ka degere 2" t
7hich is translated: THE defendant Q
: guilty Of manslaughter in the /
econd degree" 4 motion in arrest =
/ judgment was, before sentence, e
lade, founded upon the alleged Il
rT0r in the verdict. and defendant a
laimed that as the degree of man "
laughter was not written out by the Il
Try, but was only indicated by the 2
CURE %" the sentence should be 4
II the lowest or third degree Of n
There can be no ii
oubt that the jury intended to find Il
ie defendant guilty Of the second D
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