The Hawaiian gazette., 1894-07-27

The third exception Is:
Third. That upon the examination
OF the jurors drawn to try the said
cause upon their Uoir dire, one, j.
Lucas, who had been drawn as such
juror, was examined and testified
indicating some previous knowledge
of the case.)
Upon the authority Of the Queen v.
Leong Man, s Haw. $50, and il APP
pearing that the juror ]. Lucas was
not challenged peremptorily though
none of the challenges allowed to de-
PENDANT had been made, the excep-
ton to the everything OF the objection
TO the juror avails nothing to de-
PENDANT.
The remaining exceptions TO the
introduction of evidence is as follows:
4th. Counsel for the defendant OBJ
jected to the question to the witness
Herman KaoulI in his examination
in chief on behalf of the prosecution:
estate to the Court and Jury how you
came to be there" Directing to any
evidence tending to show that the de-
PENDANT had opium or was about to
smuggle opium into the country as
being irrelevant and inadmissible.
and the smuggling of opium are both
unlawful and are punishable by the
laws OF this country, Mr.. Magoon, and
/ think everything is competent to
show and should be admitted, tending
to show why this witness acted as he
did on that night. Perhaps the pres
ent question is premature, but if this
witness shall testify that he made an
attempt to arrest this man, he then
may be asked how he came to do so,
and in testifying he can testify to
everything that was told him, or in
formation which led him to act as he
did. | shall override your objection"
Mr.. Magoon: Exception.
9Th. The defendants counsel object
ed to the question to said Kaouli upon
his examination in chief: "Up to the
time Of this arrest of the defendant
was Kauhane to all appearances in his
usual health?" on the ground that the
witness is, not an expert.
The Court: / think the witness
could be asked what his apparent con-
dition was, not to testify as an expert,
but what was his apparent condition.
Mr.. Magoon l will note an excep-
ton.
Defendants counsel objected to the
question to said Kaouli in his eXami-
nation in chief: estate distinctly
why didn't you tell him?" THAT they
were officersl, on the ground that it
makes no difference what reason they
had in their own minds for not telling
the defendant, it being obligatory up
on them to tell the defendant that
they were officers.
The Court: al think, Mr.. Magoon,
as a matter of evidence 1t should be
allowed. After the evidence is all in
will then state to the jury what the
law is as to whether they are justified
in making the arrest or not, but at
this stage of the trial l think the ques-
ton is pertinent.
Mr.. Magoon: Exception.
9th. That defendants counsel OBJ
jected to the question on redirect ex-
animation of John Hale: ado you
know when Kauhane was cut?n on
the ground that the witness has al
ready stated he did know when Kau-
hane was cut and he saw him cut
Objection overruled. Exception.
9TH. Defendants counsel objected
to the question put to the witness, b.
P. Fabian: "Have you seen that label
on the opinion before?"
Mr.. Magoon: / made an objection
at the beginning of the case with ref
erence to evidence being introduced to
show that the defendant had opium in
his possession. The Court allowed it
to be introduced as part of the res
geStd | claim now, may il please
the Court, the officers not having COM
piled with the law in making the ar
rest, that any attempt to show that
the defendant was violating the law
is wholly immaterial. The officers
cannot justify themselves in arrest
ing this man illegally, or Justify
themselves in ate mpting 10 make an
arrest at all in this case without hev-
ing first complied with the law, and /
submit that any evidence tending to
show that this defendant had any
thing on his person in the nature OF
opium or which would make him an
offender against the law is wholly ir-
relevant and immaterial as far as this
case is concerned, and / move
the Court, please, to have all
the evidence with reference to the
opium or attaching this defend
ant with the possession of opium
SlTlcheU out.
Objection overruled. Motion de-
MED. Exception.
We find no cause for sustaining
these exceptions and they are over
ruled.
A further ground for the motion for
new trial is:
Sth. That the jury drawn to try the
said cause was not kept in confine-
ment after they were sworn in as
Jurors, but were allowed to 90 to their
homes upon each adjournment of the
Court and while the trial of said
cause was in progress and not ended.
That the occasions upon which the
Jurors were allowed thus to separate
were as follows, namely, from 1890
O'Clock, p. IN. Wednesday, May Is;
1894, to $3.50 o'clock a. m. Thursday
the 18th day Of said May, and from
11:30 o'clock a. IN. of the said 18th day
of May to 1890 o'clock p. m. Of the
said day.
We hold that the crime charged be-
ing not capital it was within the dis
erection Of the presiding Judge tOallOw
the jury to separate and we do not re-
view his discretion.
We therefore override all the excep-
tions taken aud the motion for a new