The Hawaiian gazette., 1894-07-27

for you TO separate the facts in find
ings, nor to detach one fact from the
other.
So in this case, if you find that
kaouli and Kauhane had such infor-
nation as justified them in having a
reasonable suspicion that the defend
ant was engaged in an unlawful act,
such as having opium in his posses
sion without license, and there is evil
denee tending to prove that fact; then
II they were policemen or other off,
GERS OF justice, Honolulu being a sea-
port town, they had right to arrest
the defendant, and that too without
warrant. But at or before the time
of making the arrest they must have
declared themselves to have been Off
GERS of Justice, and have given the
defendant clearly 10 understand for
what cause they undertook to arrest
him. Failing in this, they were not
justified in subjecting him to arrest,
and the defendant had the right to
resist so far as to protect himself from
immediate bodily harm but his re-
sistance must have been in proportion
to the force used upon him. The law
does not require impossibilities, so in
this case if you find that Kaouli and
kauhane were acting under such
state of facts as justified them in
making the arrest without warrant,
and this defendant committed the
assault upon Kauhane and inflicted
wounds upon him from which he died,
and that kauhane had no opportunity
of making the defendant acquainted
with his authority for making the
arrest, then the defendant would not
be justified if he intended to infiict
the wounds.
You must be satisfied that the
wounds said to have been inflicted by
the defendant were the primary cause
of Kauhane's death il so, it is no ex-
cuse for the defendant that other bodily
defects contributed TO the death OF
Kaunaue, or that the wounds of Kau-
hane were not properly cared for, and
that he died from such cause. The
burden is upon the defendant to show
you that the wounds were not the
prime and immediate cause OF death,
but that the neglect to care properly
for the wounds or other bodily defects
were the immediate cause of death.
Kauhane must have died within a
year from the date upon which he is
said to have been wounded.
There is difference between civil
and criminal cases as to the degree or
quantity of the evidence which will
warrant the jury in making their
finding or verdict. In civil cases it is
| the duty of the jury TO weigh the evil
dence and find in favor of the party
who has introduced the best evidence,
or, in other words, in whose favor the
evidence preponderates. This is not
the rule in criminal cases; the guilt OF
| the defendant must be fully proved.
Neither the quality nor the quantity
of the evidence is TO be the standard;
it must be convincing beyond rea-
sonable doubt. This does not mean
beyond the possibility Of a doubt, for
in all affairs with which men have to
do and which depend upon proof or
disproof, there is a possibility of a
doubt. After having heard the evil
| dence in this case, and upon q careful
consideration of it in all its phases,
you should feel. that the truth of this
charge has not been proven to moral
certainty, then you will give defend
ant the benefit of that doubt. Such
certainty must be convincing and sat
| isfying to the minds of you gentle
men who are bound to consider the
case cOnscientiously. 1t is my hope
that l have impressed upon your
mind the high and extreme regard
which the law places upon human
life, as we'll as the life of the deceased,
whose death is the cause of this trial,
as that of the defendant, whose liberty
is now in jeopardy by, y
If you find that Kauhane came to
his death by the hands of defendant.
and that such act was committed
with malice aforethought, without
authority and justification or extenu-
alton by law, you must find him
| guilty of murder in the second degree,
as charged. If you find, however,
| that KaOuli and Kauhare were act
ing without authority and that the
arrest was clearly Illegal such an ar
rest should be considered such provo
cation as will reduce the crime from
| murder to manslaughter. And il you
| do not find that the defendant is
guilty of either murder or man
| slaughter, then you may find him
guilty of assault and battery. And,
last of all, if you find that the defend
ant was justified or eXcusable in ac-
cOrdance with the rules which / have
stated before, then you will acquit
him.
will now read you several instruc-
tions which have been asked for on
behalf of the defendant.
1st. In order to find defendant
guilty of murder in the second degree
as charged, you must find that he
killed Kauhane with malice afore-
thought, without authority, justifica-
ton or eXtenuation by law, and If you
find that any of these elements are
lacking, you may find defendant
guilty of manslaughter in any of the
three degrees, or of assault and battery
in case the facts proved in your opin-
ion warrant the same.
I'd. Self defense is the first law of
nature and civilization. Every man
is at liberty to defend his person, his
dOmicile and his family against the
assaults of any other person.
Sd. The right Of self defense ex-
tends to the taking of the life of the
assailant should such course be neces-
sary to the protection of the person
from either death or serious bodily in
jury.
4th. All necessary means of de-
Tense are allowed to all men when at