The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1898-03-10

II
and child provided for Keoa he back Mas
das house and only returned Keoas very early the
morning and then Keoa buy coffee for the party which
they drinking when defendant his appearance
above narrated actions it was urged by defend
that defendant had reasonable grounds suspect
his wife of undue intimacy with Ara but if
remarkable that defendant showed hostility Arak What
the conversation between defendant may
be known and only the subject of conjecture At any
rate Keota that oy SOON after they went out of
the house that he heard the scream.
The exception is to the courts allowing under objections
by defendants COUNSEL the sheriff and deputy sheriff.
in during the trial although they expected to be called as
witnesses They testified to certain facts observed by them
after the homicide Their presence assisting the ato
ney general in this and in the general business term
deemed necessary 1t within discretion of the
exclude them cannot see how their pres
worked any injury the defendant We overrue this
exception.
The second exception is the allowing the introduc
ton of evidence the killing the child the Indictment
charging defendant with the killing of Otsuru alone and not
the child This evidence clearly admissible being part
OF the res gestae fact connected the killing of
the woman and forms part of transaction and illustrates it's
properly excluded.
Mclean. CIR Law Sec Al:
Kerr, Homicide, Sec 1926;
People o. Foley, "a Mich. 14S;
BfOacn D. CON-. 76 Pa st. 319.
The statutory definition murder in the first degree is as
follows
Section 81 Murder the killing any human being with
ton by law and is of degrees the first second which
shall be found by the Jury
Section &c. Murder committed deliberate premeditated
malice aforethought the commission of attempt
init crime punishable with DEATH committed
aroclty or cruelty is murder in the first degree.
The third exception the courts refusal charge
half of defendant follows:
Instruction s. while presumpons of malice are
sary Prescriptions of murder because malicious killing is
murder yet presumption of malice either the act of
killing, the weapon ued from other facts and
surrounding the homicide presumption
to the degree of MURDER and consequently presumption that
the homicide than the lowest degree of malicious kill
ing, which usually murder In the second degree but higher
degree of guilt be established only by additional proof of
deliberations generalization reflection This instruction
The jury may find delberaon and generalization
from the nature of the act of killing from the used
from other facts and circumstances surrounding the act
Scarcely accused express audb that he had formed
his purpose KILL having deberaed and premeditated it,
mans mind may be shown by his act
The place of this requested instruction. charged
follows t is necessary that deliberate premedated
intention should be formed and matued before the occasion
upon which the crime was committed If executed the
intention formed if such deliberate premedtated nten
in fact formed, the murder murder in the first
degree" Also the following "Whie Prescriptions of malice
necessarily Prescriptions of murder because all malicious
killing MURDER they Prescriptions of murder in the
degree and such Prescriptions Justify conviction in the
degree only the weapons used the used
or other surrounding the killing and
connected that the killing in fact with deliberate
premeditated malice with atrocy cruelty Deli
berae premedtaed malice else extreme atocty cruelty
must proved by the evidence in order to Justify verdict
of murder in the first degree"
The instruction given correct In Assmdn o. State,
1913 347 the says discussing the difference be-
tween of murder "It is sufficient to that
that there be such premedtated malice will make
homicide the first degree the thought of taking
life have been consciously conceived in the mind; the
conception been meditated upon and deliberate
determination formed the Where homicide has been
preceded of WILL with intention to KILL and
these are followed by deliberate thought generalization, al
CtantaC
can follow each other the perpeator may be guilty OF murder
in the first degree"
To jury left the duty of finding whether the defend
ant committed with deliberate premedtated malice
aforethough The possession and by defendant OF
the knife which evidently warke weapon and not one
intended be used for domestic personal purposes extremely
imnOrt in The