The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1901-09-14
LAW THAT BLOCKS JUSTICE.
REMARKABLE PROVISION OF
HAwAITS CODE.
A Competent Witness of Great Import
usual Statutory Provision.

A Hawaiian statute which the law
yers say is most remarkable in it's pro-
visions calculated to defeat justice ope-
rated yesterday in Judge Gears court
to exclude the important testimony of
a witness who was admitted by all to
be competent to testify. He was the
most important witness in the case.
According to the judge and attorneys
alike, the witness in question could have
testified in any American or English
court, under a long line of presidents,
but under section 1413 of the civil code
of Hawaii, the judge felt obliged to or
der him to leave the stand.
The witness was Hideo, the ten-year
old son of Toma, a Japanese woman
who is alleged to have been killed by a
brutal blow from an instrument in the
hands of Nakamura, who is on trial.
The little boy was alone with his
mother when the blow was struck, ac-
cordng to the father. His story is to
the effect that Nakamura came into the
room and struck his mother on the head
and that she then fell to the floor dead
as she was found moment later by her
husband.
This story the little boy told with
perfect intelligence and straghtfor-
wardness to his father and to the at
torneys for the prosecution, but under
the remarkable Hawaiian law he could
not tell it to the jury. The section of
law bearing on the subject says:
ION the trial of any issue Joined, or of
any matter or question, or on any in
quiry arising in any suit, action or pro-
ceeding in any court or before any per-
son having by law or by consent of
parties, authority to hear receive and
examine evidence, it shall be lawful for
such court or person to receive the
evidence of any minor, Notwithstanding
! he may be destitute of the knowledge of
God and of any belief in religion or in
future state or rewards and punish
ments Provided always, that the evil
| dence of such minor shall be given upon
his affirmation or declaration to tell the
| truth, the whole truth and nothing but
the truth, or in such other form as may
be approved of and allowed by such
court or person as aforesaid, and after
he shall have been cautioned by such
court or person that he will incur and
be liable to punishment if he does not
tell the truth. Provided also, that no
such evidence shall in any case be re-
ceived unless it shall be proved to the
satisfaction of such court or such per-
son. that such minor perfectly under
stands the nature and object of such
declaration or affirmation as aforesaid
and the purpose for which his testimony
is required"
Little Hideo understood all about tell
ing the truth and he was very intelli-
gent His story as far as he got with
it was a very clear one. The jurors
were anxious to hear it to the end and
did not conceal their wish to listen to
him, but the peculiar law was in the
way. The attorneys for the prosecu-
ton submitted, with the knowledge that
the law was a very clear stumbling
block to justice. in many cases.
'If a similar rule were applied to
adults it would be impossible for a
large number of the Chinese and Jap
| anese men and women to testify" said
Attorney Brooks. There are plenty of
| grown up people who do not perfectly
understand the nature and object of
their OATH The law goes far beyond
my rule of law ever heard of in other
countries"
Cases were cited in which infants of
| five and six years had testified in other
countries, and Judge Gear himself said
that the guiding rule was and should
be whether the child was able to re-
| ceive impressions and describe what
was seen or heard. The judge admitted
| that he too would like to hear Hideo's
evidence, but said he was bound by the
statute, and would have to exclude it,
! Yesterday afternoon Judge Gear in
structed the jury to bring in a verdict of
not guilty, and Nakamura went free.
1t was shown that he was alone with
the woman Toma just before her death,
that there was a quarrel followed by
sounds of blows and that when her
husband ran to investigate he found her
| lying dying on the floor and Naka-
mura running away. and DIR. Mcdonald
testified that the cause of death APP
peared to have been a blow on the head,
inducing cerebral hemorrhage, but
without the testimony of the little boy
who said he saw the blow struck it was
| held to be useless to attempt to con-
Wet the defendant. The prosecution
offered to enter a nolle prosequi, but
this was not satisfactory to the defense
and an instructed verdict was given.
Nakamura has served five years for
manslaughter before it is stated. His
escape this time is due to a statute
which the lawyers say can be applied to
practically shut out the testimony of
minors in court.