The Hawaiian gazette., 1894-07-27

is not obliged to wait until he has re-
ceived an injury before repelling the
attack, he may anticipate the attack
Of his adversary, but he must have in
good faith and with honest intent en-
deavored TO have avoided the violence
of the assault. A delusion that a man
is to be attacked by another will not
justify him in taking the life of anoth-
er unless it is shown that the danger
is real and extreme. The means OF
defense must be in proportion to the
danger. II one retaliates with weap-
on entirely out of proportion TO the
attack threatened, then he is not JUS
titled if he killed his adversary. The
law looks with extreme disfavor upon
the use of any weapon calculated to
produce death and requires the best of
reasons TO show justification or ex-
cuse.
Many instances have occurred in
which death has been caused by the
use of an instrument not in itself dam
gerous, but by reason of peculiar cir
cumstances, or because some extreme
ly vital or sensitive spot has been
injured and death was the result.
The law in its leniency has allowed
the crime to be reduced from murder
TO manslaughter, for the law seeks to
punish only those who have been
clearly proven 10 be guilty 10
give the defendant the benefit
of all doubt as to his mani
fest and certain intent. But the law
also demands that all rules for the
protection of life and property shall
be literally complied with, and holds
sternly TO account all those who are
transgressors. The life of man is
considered the most precious of all
things on earth, and he who takes the
life OF another without justification is
guilty of the highest social crime
known to our law, and with two ex-
ceptiens is only equalled in its pun
ishment for the political crime of trea-
son. For these reasons the law scru-
! tiniZes every act connected with the
killing of every human being with
the utmost particularly in order to
determine the guilt or innocence OF
| the accused. And this necessity has
arisen so often that the rules of law
made use of in determining such cases
/ are plain and well defined.
EXcusable homicide is where per-
/ son is doing an act in itself lawful and
/ by accident kills another; as where q
I man is working with an AK or ham
| mer and without any fault or negli-
| gence on his part the head flies oil
/ and kills a bystander. Here again
/ the law iuterpOses and does not allow
| the unfortunate one to be punished,
| provided that il is fully proven that 1t
was by accident pure and simple. But
/ if the killing be shown to have been
done while in the performance of Il
legal act, vet accompanied by negli-
/ gence on the part of the accused, the
| law will hold him responsible in the
/ degree of his culpability. SO strongly
does the law draw the lines In this
regard, that where the performance
of the act is of itself legal, yet If any
way likely to produce death, the
utmost care is required to be pre-
served by all engaged in the transac-
ton. But in cases of this nature the
elements which are necessary to con-
stitute the crime of murder, namely,
that of malice, is wanting; this then
/ is the distinguishing line between the
crime of murder and the lesser one OF
manslaughter.
Malice is the impulse which stimu-
lates desire and formulates the at
tempt which leads man to commit a
crime. 1t is the presence of this IN
tent, founded upon malice, which de-
| termines the nature of the act, and
/ without it the act of murder cam
not be committed. 1t becomes neces-
sary then that we consider with pre-
/ cisiOn this distinction, in order that
we NAV have a clear and intelligent
understanding as to the legal char
acter of the act and what evidence is
REQUIRED in order to determine its
/ presence.
Every person is presumed to be
| innocent until he has been proven to
be guilty, and the law also presumes
| that every sane person intends the
natural and ordinary consequences of
! his intended act. Every person is
presumed TO be sane until proven to
! be otherwise. The intent with which
an act was done is to be gathered from
all the circumstances attending 1t. III
a person deliberately sets himself to
accomplish a certain thing he is pre-
sumed to intend all the probable and
| natural results of his act, and the law
does not permit him to say after the
| commission of the act that he did not
intend its results, but he must, in
case death has resulted, show justi-
| fication or excuse. 1t is the intent
which constitutes the criminality of
the act, and where the act in itself is
Indifferent and only becomes criminal
when done with particular intent,
/ then the intent must be proved. But
where the act in itself is unlawful,
| the burden is upon the defendant to
/ show Justification or excuse, and upon
| failure to do so the law implies a
criminal intent. So where the act of
killing another is proved, malice
afOrethOught shall be presumed, and
the burden rests upon the party who
committed the act to show that it did
not exist, or he must show legal
justification or extenuatiOn therefor.
Malice Is not restricted specially to-
wards the person assaulted, but Is I'M
derstood to be that general reckless
ness OF the lives of others, and
were the act done deliberately and
without sufficient prOvocation, the
law presumes that it was done In
malice. The rule then established by
the authorities is that the implication
of malice arises in every case of inten-
tional homicide. The killing having
frat haen nrOyen. the circumstances of