The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1898-02-10
COUNSEL HASASAY
Attorney Differs From Judgment
Of the COlrt.
THE KAUAI MURDER CASE
Mr.. Robertson Further Insists On
Courts InstruCtion-Jury.

MR.. EDITOR:-In this mornings
Advertiser, you favor the public with
an editorial on the subject of ''The
Kauai Murder Case" the object of
which seems to be to assure your
readers that the defendants in that
case received "a full and most impair
tial trial." and that no errors have
been committed by either the trial
Judge or the Supreme Court.
Permit me brief space in which to
differ with you.
You refer more particularly to the
point as to whether the trial Judge
was wrong in instructing the jury that
they must convict the principal de-
fendant, Kapea, if at ALL of murder
in the first degree.
Our statute says that murder is the
killing of any human being with
malice aforethought, without author
ity, justification or extenuation by law,
and is of two degrees, the first and
the second, which shall be found by
the jury
But in the face of that express pro-
vision, the Supreme Court approved
of the degree in this case being found
by the Judge who, in effect, told the
jury that if the evidence proved any
thing, it proved murder in the first
degree, and that they could not, there
fore, convict of murder in the second
degree The effect of the decision is to
| nullify to large extent, if not COM
pletely. the last seven words of the
statutory provision above quoted.
Furthermore, under our statute (Ch.
| SO, 1892, the jury are the exclusive
| judges of the facts in cases tried be-
| fore them. 1t is their undeniable pre-
rogative to believe as much or as little
of the testimony as they, upon their
consciences, may see fit. In no case
can they lawfully be compelled to be-
lieve either all the testimony or none
of it, for the law gives them the right,
and it is their duty, to disregard so
| much of the evidence as they may con-
slider unworthy of credence. Yet in
| this case the Judge told the jury, in
effect, that if they believed that a mur-
der had been committed they must also
| believe that it was done with deliber-
ate generalization, and should there
fore convict in the first degree-thus
forcing the jury to give effect to all
the evidence when it was their right
to reject so much of it as they dis
believed.
You say that "the opinion of the
Court is sustained by many decisions
of the Federal and State Courts" But
such is not the fact. There is no
Federal statute dividing murder into
| two degrees and allowing the jury to
| find the degree. And no State Court
decision, so far as | am aware, under
statute like ours, sustains the posi-
ton taken by our Supreme Court. On
| the contrary, the Courts of Pennsyl-
vania, Ohio, Connecticut, Nevada and
| North Carolina, have repeatedly taken
! the opposite view in constituting stat
utes worded substantially like ours
| holding that for the Judge to determ-
| inc the degree Of murder as was done
in this case is to trespass on the func-
tions of the jury.
| Our Court seems to have confused
| the point here considered with another
one that was raised, for in discussing
! this point the Court quotes the in
structions Of the trial Judge in regard
to aiding and abetting and ignores the
instructions given on the subject OF the
degree Of the crime.
The change in regard to aiding and
abetting presented a question of equal
importance
The theory of the prosecution was
! that Kapea shot the deceased while
his cousin, Iokepa, held their horses
near by. Kapea's defense was an alibi.
He claimed that he was at home at the
| time the murder was committed. There
was absolutely no evidence in the case
| that Iokepa committed the murder
and that Kapea was present assisting.
| Nevertheless, the jury were told that
| if they believed that Iokepa killed the
| deceased and that Kapea was present
and aiding and abetting they should
convict Kapea of murder in the first
degree, thus allowing the jury to con-
vict Kapea upon either Of two theories,
when they could properly have con-
victed upon one theory only. The Su-
/ nrama Courf holds that thn in nStr11ction