The Hawaiian gazette., 1896-10-30
OPINION OF THE COURT, BY WHITING. J.

The defendants were indicted and convicted OF the ofense
Of Unlawful Assembly the First Circuit Court in Honolulu
the May Term 1896 for that they together with divers
other persons the Acknowledgement unknown, being then
and there three persons in all We're, of their
authority, assembled together with disturbance tnut and
violence and striking and tending strike into
others, contrary the form Of the statute.
This statutory oense, all crimes and oense in
this Republic and the language of Section l. Chapter IS
Of the Penal Code
The defendants moved Tor trial the ground that
the verdict contrary the law and the evidence ID the
ground Of newly discovered evdence-ch over
ruled duly excepted to and these exceptions presented this
Court
A. the ground the defendants submitted it to the
Court and referred merely the report of the evidence with
partcularzng the evidence.
Nevertheless have carefully examined the reported ev
denee and find sufficient evidence warrant the jury in
finding verdict of guilty and may say that it clearly sup
ports the verdict question OF law pointed that
the verdict contrary the law as charged.
Al the close OF the for the prosecutions the defendants
moved the Court instruct the jury acqui the defendants
the grounds that the prosecution had failed prove that
defendants unlawfuly asembed that any threats
made by the defendants that there was any actual force
violence committed by any the defendants that there
any stricken Others and that the oense the
prosecution had proven aray between officer Hughes
and one Frank Ferre and the interference of Frank Ferrea
with the arrest OF Nunz'
This the Court refused properly for ii required the Court to
the weight of the evidence and such be required
OF the Court except where there evidence TO sup
the the evidence
ample and sufficient support the verdict and the
right IN Its discretion leaving the weight of the evidence
the cre5y OF the witnesses and the to the Jury The
evidence clearly shows disturbance tunu and violence and
tending strike Others and that these defendants
rngeaders in the tumut. Chapter 3S Penal Code,
Section Menacng language, gestures, show weap-
or other signs Of demonstrations tending excite terror
Others sufficient violence to characterize an unlawful
assembly riot
There evidence upon all the points in this Section 3
Section ;: II is not requisite in order constitute an
unlawful assembly riot, that persons should have
together with unlawful intent or in any
unlawful that the object Of the meeting or the
done intended should Of itself be unlawful The tmut
and violence tending excite characterize the oese
though the persons may have assembled In lawful manner
and though the object OF the meeting if legally pursued or the
act done or intended performed in proper manner would
he lawful
Section s. Persons present at riot or unlawful assembly
and promoting the same, aiding abeng, encouraging or
eountenanclns the parties concerned therein by words signs
acts or otherwise themselves parties thereto and principals
therein
The acts Of defendants within both of these sections
The defendants based their new trial upon the
ground Of newly discovered evidence material their defense
To support this the affidavit of the proposed witness Hon
Circuit Judge A. Perry, and the affidavit of Mr. A. G. Correa
the counsel for defendants the trial.
This last affidavit FORTH "a g. Correa being duy sworn
on his oath depo and says that he was counsel for the de-
PENDANTS in the of the Republic Of Hatoai Manuel
tdrrquo and others That counsel he used all his endeavors
and means his power obtain and gather all the evidence
possible in the above mentioned cause That he knew Of
Perry Esq evidence only after the jury the above cause had
rendered their verdict"
This affidavit insufficient in that does not show what
diligence used by counsel in the preparation of the defense
The ground OF newly discovered evidence made out within
the recognized rules OF practice sufficient to grant new trial
But IN order to that result should appear not only that the
proposed testimony newly discovered that would be material
70 the issue and that it would be merely cumulative ht
mat the defendant did not lose the opportunity to Law it before
the jury by his own laches For when appears to the C
that the party might by the exercise due diligence have dis
covered and obtained the proposed new testimony at or before
the ta new tral will not be granted unless there are IN
me particular case some peculiar circumstances of such char
acter as are entitled weight in the mind of the Co
deciding nPon motion addressed to its discretion.
Weston o. Montgomery 2 Haw 3D.
1he defendant must reasonable diligence There ava