The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-07-31


This statute says that sit shall not be
necessary TO set forth the manner in
which or the means by which the
death OF the deceased was caused,
but it shall be sufficient in any in
dictment for murder to charge that
the defendant did feloniOusly, 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,
Chap. LXXI., that the malice was
deliberate premeditated," in order
to charge murder in the first
degree. The addition of the second
count which merely gives particulars
does not vltlate the Indictment, and
1t was more advantageous to the de-
PENDANT to apprise him by the plead
lngs of the particulars which the
prosecution expected to prove. There
being no variance between the two
counts nor alleged to be in the evi-
dence there was no occasion for the
prosecution to elect upon which 1t
would proceed, nor was it error for
the jury to have rendered a 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
overruling of the demurrer were
pending and undecided and, on this
objection being overruled, defendant
excepted. Exceptions to the over
ruling Of a 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 will be found that the
prosecution has in such cases either
consented to this procedure or it has
been unnoticed 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 vs.. Smith, Prov.
Govt VS.. All In and Brown VS.. Car
valho is the best course and we ad-
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 "Lot 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 SO Criminal Proce-
dure Act, o. 34S Compiled Laws.
Eighth. During the trial wit
ness, Geo. Kuoha, was called for the
prosecution, and foundation having
been laid, his testimony and veracity
were sought to be lmpeached by evil
dence Of different statements made
by him in the District Court of Homo
lulu at the preliminary examination.
The objection is made that the Ma
gistrate read from notes of Kuoha's
evidence made by him at the time it
was delivered, the evidence being
given by Kuoha in Hawaiian and in
terpreted into English by Thompson,
the Court Interpreter. We find from
the evidence transcribed by the
Stenographer that before the Magis-
trate read any part of his notes, the
interpreter, Thompson, was sworn in
the case and testified to the
Jury, of his own recollection,
what the witness had said in the
District Court, and that thereafter
the Magistrate resumed the witness
stand and read such part of the notes
Of Kuoha's evidence as was requested,
which agreed substantially with what
the Interpreter had testified to.
Therefore there is no occasion for us
to say what our view would be in
case the Magistrate had merely read
from his notes evidence given to him
by an interpreter interpreter
not being called or testifying.
Ninth. The trial Court admitted
as evidence the so-called dying
declarations made by the deceased
Huntsman, as to who his assailant
was and other circumstances. This
was objected to, IL that it did not
appear from the evidence of the
witnesses that Huntsman, at the time
he made the declarations, realized
that he was in dying condition and
spoke under the belief and sanction
of impending death. We have ex-
amined the transcribed notes Of the
| evidence Of II. Won Werthern, Jr.,
| Marshal Ashley aud Deputy Marshal
Mehrtens as to the circumstances,
acts and statements attending these
declarations, and are convinced that
they justified the Court in receiving
the declarations. It is not essential
that the declarant shall state form
ally that he makes the statement
under a sense of impending death,
but it must satisfactorily appear in
some way that they were made under
the solemnity of that sanction. Kerr
Homicide, Sec, Alp, ct seq.
The facts succinctly stated are
these. Huntsman received two pis-
tol shots one of which was mortal on
Saturday P. NJ. the 18th March last.
He was taken to the Hospital and on
Sunday evening the 18th at about IL
o'clock the then Marshal Ashley and
Deputy Mehrtens with Won Werthen
friend appeared in company with
the hospital steward at his bedside.
He was in a very weak condition
and 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 a
weak voice, which statement was
taken down in writing He died
early the next morning. The inter