The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-11-12
OPINION or THE COURT. BY FREAR, J.

The defendant larceny in the second degree
in the Circuit Court of Kauai appeal District
Magistrate of Wamea that Island, brings here
exception the charge of the presiding Judge to the
jury and more particularly that portion Of the charge which
reads follows:
IF you believe that Mr. his interview with the
defendant the morning after the theft did mention the
$40 piece, then the by the defendant Black
adt that twendOar piece and silver had
by you believe that statement needs
to be accounted for; and you believe the testimony the
prosecution on TINS point then such statement by defendant
ne made IT. does have tendency prove that the
the who stole the money. If hand You
believe the evidence of the defendant this point then his state
ment to Mr. Blackstadt is accounted for"
The Judge also charged the jury that IF upon whole
evidence IN the case convinced beyond reasonable
doubt OF the defendants guilt You acquit are
thoroughly convinced beyond doubt of defendants
guilt you must render a verdict of guilt"
The evidence not having been made part bill of
exceptions: II must be assumed to have been such would have
justified if possible the Judge in giving Instruction. We
at least that it stated argument by the
Deputy and not contradced by defendants
counsel in substance that twenydoar gold piece and some
silver had been stolen from Mr. asse money had been
Kept under Lock and key Mr. Mae house, that there
no exanabe in which the defendant if he Innocent
could have known the amount denomination of the money
less told by Mr. Massie not told by Mr. Massie.
that he knew kept there that he had opportunity as
household steal after the theft he told
Mr. Blacksadt that twenv-oar gold piece and some silver
had been stolen Against this defendants testimony
that Mr. Masse had told him what money had stolen
Two objections made the charge. The first that it
violated Sec l. Oh Sc, Laws of 1892 which provides e
shall in all be the exclusive Judges facts in
suits tried before the and the Judge presiding at
any hereinafter named the Court shall
comment upon the character, quality, strength, weakness or
credlbty of evidence submitted upon the character
attitude, appearance motive reliability of any witness sworn
cause" We think however although part of the in
strcon too far taken by ITSELF the as
whole within the provso the latter part section
above quoted that nothing herein shall be prohibit
the Court from charging the jury whether there evil
dence Indicating the evidence tending establish
specific fact involved in cause. There to have
been question that the money had question
who stole it? And the Judge effect charged was
evidence namely Mr. Masse statement that he had told
defendant the character of the money! tending prove spe
clic fact that the defendant the who stole it.
The second objection the charge that places undue
Importance particular portion of the evidence ignores
the rest The evidence referred turning point
the and the portion of the instruction that given
upon the whole evidence far appears all
rest OF the evidence called for No doubt charge under
some circumstances though strictly goes mis-
lead the by giving undue prominence the evil
dence In this cae however, of opinion that the
defendant preudiced this respect Court GER
tainy not bound in all review the evidence
because it has specifically referred portion
The cited by defendants COUNSEL Smith a. State 43
Tex 03 both points raised, differs somewhat in its facts
from the and the Texas not appear to
have the proviso contained in
The exception is overruled
Deputy AHorney-Gaerat e. p. Dole for prosecution
Thur'StOn d Stanley, for defendant