The Hawaiian gazette., 1894-07-27

was self-cocking) on defendants head,
KaOuli says, caused its discharge.
Kauhane told kaouli not TO shoot
him. kaoui, though faint and his
leg and arm numb from the wounds,
! jumped on defendant and kicked him
n well as he could. Help was called
and finally other officers came and all
| three, defendant and Kauhane and
haouli were taken in hacks TO the
/ station house in weak and wounded
| condition and all were afforded
surgical treatment. Defendant and
| KaOui after several weeks, re
I covered. Kauhane died in the early
morning of the 2lst February last,
about thirty-two hours after re
ceiving his wounds. When the
officers picked up defendant TO
convey him to the Station House,
| tin of opium was found on his person,
another was taken from his coat
pocket on reaching the Station House,
and three more were found where the
struggle had taken place. The jury
had right to find from this evidence
| that the defendant, being a steward of
| foreign vessel, had brought the
| opium ashore from her, and was there
| stopped by KaOuli. Ii there was any
doubt as TO the act of smuggling, the
| facts would justify the jury in holding
that defendant had opium in posses
sion, which is illegal. These were cir
cumstances that justified officer kau-
| hane's suspicion that an otfense had
been or was intending to commit an
/ offense.
The law Penal Code, Chapter 49)
| allowing arrests to be made without
warrant in a seaport or town when
/ the offender is in the act of commit
| ting an Ottense, or even when ii is not
| certain that an offense has been COM
mitted, would justify the jury on the
/ facts above detailed in holding that
| kauhane and his brother officer were
not trespassers in stopping the de-
PENDANT so as TO justify defendants
! violent resistance. The evidence in
| regard to the opium was therefore eX-
Iremely pertinent, and its introduce
/ ton was proper. The law does not
/ make il imperative that the officer
shall declare that he is an officer of
! justice before he puts his hand on the
| supposed offender. The statute Sec.
8, Chap. 40, Penal Code reads: "At
or before the time of making an arrest,
the person must declare that he is an
! officer of justice, if such be the case.
If he make the arrest
without warrant he
| should give the party arrested
! clearly to understand for what cause
! he undertakes to make the arrest ana
must require him 10 submit and ac-
company him to the Jail or magis-
trate. This done, the arrest is COM
plete The law does not require i'm
! possibilities. The parties were en-
gagged in a deadly conflict, and if the
! Jury found las they would be justified
in finding, that the defendant, the
! officers having reason to believe that
he was committing an unlawful act,
! started TO escape as soon as the officers
came up to him and, when stopped,
| Immediately began cutting the per-
| sons endeavoring to detain him,
with a deadly knife, they would be
authorized TO find that the further eff
forts of KaOuli and of the deceased of
J ficer Kauhane to detain him, were
| justified even though no formal arrest
was made. We must not lose sight of
| the fact that the assault with knife
was an offense in itself for which the
officers had a right to hold defendant.
The seventh and eighth sections of
! this Chapter on arrest have strong
| bearing on this case:
sin all cases where the person ar
| rested refuses TO submit or attempts
to e. cape, such degree of force may be
used as is necessary to compel him to
! such submission.
"He who makes an arrest may take
from the party arrested all offensive
| weapons which he may have about
his person, and must deliver them to
the magistrate, to be disposed OF ac-
cording to law"
To resume the narrative, Kauhane,
| though apparently doing well after
his Injuries, died Unexpectedly, in
about thirty-two hours. The surgeon
of the Hospital who made the autop-
sy, DR. C. B. Wood, testified that in
his opinion Kauhane died as the re-
] suit of there being carried eliot of
| blood to the heart through vein
| from one of several wounds that he
had on his body, and that he found no
other sufficient cause of death. page
81 of testimony The Doctors ex-
| plantations were full and sufficient to
| CONVINCE Tue jury lldl lueSc MOunuo
were the immediate cause OF his
| death.
Having thus reviewed the facts of
| the case we override the motion for
new trial made on the ground that
| the verdict was contrary to law, the
! evidence and the weight of evidence.
The charge of the Court was as
| follows:
Gentlemen, you have listened to
tie evidence and have heard the
argument of the counsel, and it now
| becomes my duty to instruct yeu as
to the law which is to govern you in
| the consideration of this case.
The defendant is charged with hav-
| ing committed the crime of murder
in the second degree.
Murder in this country is statu-
tory crime and is defined TO be the
killing of any human being with ma
lice aforethought without authority,
justification or extenuation by law.
Murder committed with deliberate
premeditated malice afOrethought or
in the commission of or attempt to
commit any crime punishable with
death, or committed with extreme
cruelty is murder in the first degree.
Murder NOT aODeariDp in the first de-