The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1896-10-29
OPINION OF THE COURT, BY WHITING, j.

The defendants indicted and convicted of the ofense
of Assembly the First Circuit Court in Honolulu
May Term, 1896 for that they together with divers
other persons the Attorney General unknown, being then
and there three persons in all OF their own
authority assembled together with disturbance tmut and
violence striking and tending strike into
others, contrary o the form of the statute
This statutory oense all crimes and otenses
this Republic and in the language of Section i Chapter 90
of the Penal Code
The defendants trial. the ground that
contrary the law and the evidence I'd the
ground newly discovered evidencewhich motion
ruled duly excepted and these exceptions presented to this
Court
AS to the first ground defendants submitted it the
merely report of the evidence with
partcularizing the evidence.
Nevertheless have carefully examined the reported
dence sufficient evidence the jury
finding verdict of guilty and that it clearly sup
ports the verdict no question OF law was pointed out TO Us at
the verdict contrary the law as charged.
cat the the for the prosecution the defendants
moved the Court instruct the jury to act the defendants
grounds that the had failed that
unawfuy assembled; that any threats
made the defendants that there actual force
violence committed OF the detendants that there
any stricken into Others and that the oene the
prosecution had aay between Officer Hughes
Frank Ferrera and the interference of Frank tee
with the arrest of Mmniz"
This the Court refused properly required the Court
pass weight the evidence and such be required
except where there evidence to
mort the charge and in this case we have evidence
ample sufficient support the verdict and the Court
right discretion in leaving the weight OF the evidence,
the credbty of the witnesses and the facts to the jury The
tending strike others and that these defendants
rngeaders in the tumult. Chapter 36, Penal Code,
Section 'Menacng language, gestures show of weap
other signs of demonstrations tending to excite terror
in Others sufficient violence to characterize unlawful
assembly riot
There was evidence upon all the points in this Section 3
Section "It is requisite in order constitute
unlawful assembly riot that persons should have
together with unlawful intent, IN
unlawful manner; that the object of the meeting, or the
done intended should of itself be unlawful The tumut
and violence tending excite characterize the oense
he assembled
and though the object of the meeting if legally pursued the
intended if performed proper would
be lawful
Section persons present a riot unlawful assembly,
and promoting the aiding abethng encouraging or
counenancng the parties concerned therein by words slgns
otherwise themselves parties thereto and principals
therein"
The acts of defendants come within both of these sections
The defendants based their motion for trial upon the
ground 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. ~ g. COrrea
the counsel for defendants at the trial
This last affidavit forth: "a G. Correa being duly
his oath depO and that he counsel for the de
PENDANTS the of the Republic of Hacaii Manuel
CdUdhO and others That counsel he used all his endeavor
and in his power obtain and gather all the evidence
possible the above mentioned That he knew of A.
Perry Eqs evidence only after the In the above had
rendered their verdict"
This affidavit insufficient in that it does show what
diligence used by counsel in the preparation of the defense
The ground of newly discovered evidence if made within
the recognized rules of practice sufficient trial
But in order that result should appear not only that the
proposed testimony newly discovered that would be material
the ISSUE and that would be merely cumulative but
that the defendant did not lose the before
the by his aches For when the Court
that the party might by the exercise of due diligence have dis
covered and obtained the proposed testimony before
the trial. trial will not be granted, unless there in
particular peculiar circumstances of such char
entitled to weight in the mind of the Court in
deciding upon a motion addressed to its discretion
Weston Z. Montgomery, Haw. 3d.
defendant reasonable