The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-07-28

quence l., that there is nothing TO
rebuff the presumption OF malice. II
the malicious intention precede the
act, il i sufficient. 1t follows, there
fore, that the term malice afOre-
thought does not imply that any con-
siderable lapse OF time Il necessary
between the malicious intent and the
actual execution of the intent. The
rule being that there should be 4 de-
finite purpose does not mean this in
tentiOu must have been the result OF a
cool and deliberate judgment, and
with previous maliguity Of heart.
Every material fact essential 10 estab-
lish the Offense must be >ubstantiated
in your mind, but i i hot necessary
for you to separate the facts in find
ings, nor To detacn one fact from the
other.
So in this case, if you find that
KaOui 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
dence tending TO prove that fact; then
if they were policemen or other OIL
GERS of justice, Honolulu being 4 sea-
port town, they had q right to arrest
a 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 to understand for
what cause they undertook TO arrest
him. Failing in this, they were not
justified in subjecting him 10 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 impOSSibiHueS, so IN
this case if you fed that kaOuli and
kauhane were acting under such a
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; if so, IL 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 tue quantity
of the evidence is TO be the standard;
it must be convincing beyond a rea-
son able doubt. This does not mean
beyond the possibility of q doubt, for
in all affairs with which men have to
DO aud which depend upon proof or
diSprOOf, there is a possibility of q
Il gubt. After having heard the evil
dence in this case, and upon careful
OF it in all its phases,
YOU should feel that the truth Of this
charge has not been proven 10 q moral
certainty, then you will give defend
ant the benefit of that doubt. Such
certainty must be convincing and sat
z II
men who are bound TO consider the
case conscientiousIy. 1t is my hope
that [ have impressed upon your
mind the high and extreme regard
which the law places upon human
life, a. 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 :.
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, /
Is charged. If you find, however,
that kaOuli and hauhaCe were act
ing without authority and that the
arrest was clearly illegal, such an ar
u
cation a. viii reduce the crime from
murder TO manslaugh And If you
10 not find that the defendant i
guilty Of either murder or man
slaughter, then you may filt him
guilty. Of assault and battery. And, /
last Of all, If you find that tae defend
ant was Justified or eNcUsab.e in ac-
,oriauce with the III e which I have
stated le-ore, then you viii acIuIr
him.
1 viii now read you several iustruc-
behalf Of the defendant.
lst. In order TO fud defendant
guilty OF murder in the second degree
A. charged, you must lind that he
killed kauhaue with malice afore-
5hought, without authority, jusriaca-
ton or exteuuatiOu by law, and If you
find that any OF these clemens are
lacking. YOU may find defendant
.--,:rrv- -,F S'srrurDrar IN any pf the