The Pacific commercial advertiser., 1900-10-19

indicating under what circumstances may hnd
way other In such the may instruct tho
jury penalty and then leave it to the latter to say On an
the evidence whether the accused convicted deserving OF the
higher penalty When, commonly the case
itself the penalty there S as rule
nothing specified in the guide nm either as 70 the
penalty within the prescribed limits
These provisions the have been on the books nifty
years penal Cod 1850 Ch 33 Secs 6S Penal Code 1862
Ch 6S) The same of similar provisions in re-
gard nusances ena Code 1885, Ch 5 Secs olo
Penal Code 1862 Ch &c. Secs. S10 Penal Laws 1897 Ch
&c. Secs 331333 Similar provisions relating to manslaughte
which divided into three degrees have been on the books forty
years Act 3O 1861 Penal Code 1863 Secs 69
Penal Laws 1897 Ch Z Secs 45-4S The validity of these
provisions have questioned until questioned by
sci for the present defendant they had been considered as
deegatng to the power to define oens their
validity undoubtedly would have been questioned The question
Is of construction If the degrees different ofenses
the clearly unconstitutional and defective; if the de
gres different grades with reference to the meng OF
greater less penalty the clearly constitutional and
complete The latter construction has been acquesced by all
branches of the we'll by the bar for half century
the construction placed upon the statute by the Supreme
Court with reference this very defendant h0bcas
I'm Marshall supra and being only question of constrc
ton and the construction long acquescd in and finally decided
being possible construction opinion should
be disturbed.
1t further conended that the verdict of the jury
stand because The verdict returned May
49, 1900 during transition period between the annexation
Of these islands the United States and the taking effect of the
Act of Congress establishing Territorial government for these
islands We hold that verdcts by out of twelve
jurors permitted by Hawaiian law before such annexation
could be lawfully returned after annexation and before the tab
shmen of such government bang conclusion upon the
reasoning in Peacock Co. Reputc II Haw. 81; Republic
Edrards Ib 55 and the dissenting opinion in ED parte
Ed,cards, filed at the same time herewith.
third point will be considered which, though touched
upon the argument raised by the exceptions and noticed
in defendants brief Iis replied by the prosecution in
Elementary brief The defendant charged in the District
Court with both the making and the publishing of libel Upon
his aagnment there he pleaded guilty shown by the
record In the Circuit Court appeal the charge amended
the making of libel and the publishing 1t
does appear the record whether the defendant pleaded
the charge amended 1t contended that should
appear.
The general rule that there be in every criminal
aagnment and plea the object of the arragnment being
identify the accused inform him Of the charge and obtain his
plea the object of the plea being make issue be tried It
generally held that where the record shows plea arrag
ment will be but that the record must show least
plea This however regarded of form within
the meaning of statutes which provide that criminal proceedings
shall not be aecedby of defects of form
preudicia the defendant United States MoUoy Fed
Rep 49, In that the failed arragnent
plea The Circuit Court per Brewer j. aside from the ques
ton of the effect of the statue said:
n the first place. well the purpose and
necessity of arrangement 1t ad down the old law
Looks that three be uberved: O The denca
ton OF the detendant 70 giving hlm information of the parlc
uar ofense charged against him which he be tried and
3 to receive from him plea which he makes that charge
Now in the tried, perfectly evident that defend
ant knew exactly the oese charged against him. that he
ldented and that he denied the charge and trial upon
that denial Indeed he the stand himself and
there denied It, 1t may something of anomaly say
that proceedings may be such that the trial there
evidence OF prejudicial when the record
appellate court may disclose such And yet this of
arrangement presents much such Where record
taken to the supreme court shows simply Indictment, trial.
and convictions there nothing amavey appearing
the face of the record from which that the
defendant knew prior to the mpaneng of jury and po
the trial. the of the charge against him.
but that he trial spposng that the charge
thing and after the testimony introduced discovered for the
time that he being tried for another and different oense
And pursuing that thought that might say that
record disclosed because failed show tho
guarantees of his protection that he knew prior the his