The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1901-09-17
NAKAMURA
RELEASED
Evidence Of Bow
Ruled Out by
L.. Court.
(From Saturdays daily.)

yesterday. The boy Hideo was not al
lowed to testify by Judge Gear. and with
nothing but circumstantial evidence left
for the consideration Of the jury, the
prosecution offered to nolle proseQui the
case after q motion to instruct for &C.
quittal had been argued. Acting upon
the instruction Of the court, p. c. Jones.
as foreman for the jury. signed a YER
dict of mot guilty." and the prisoner
became q free man.
The Nakamura case was taken up the
first thing yesterday morning, and Judge
Gear heard arguments upon the admis-
sion of the boys testimony for nearly
the entire morning. 1t was admitted
that the child under the general rule of
law, would be permitted to testify; but
the Hawaiian statutes hold that the court
must first satisfy himself that minor
thoroughly understands the nature Of an
affirmation or oath. Court was finally
adjourned until / o'clock, at which time
Judge Gear promised to render his de-
cision
When court reconvened in the after
noon, the old argument was reopened as
to the boys knowledge of God, and final
ly he was again placed on the stand and
questioned by the Court.
do you know that besides the pun
ishment by God, you will be punished by
this court II you do not tell the TRUTH"
asked Judge Gear.
II do" replied the boy.
And that If you are guilty Of perjury
you can be sent to Jail for as much as
twenty yearsT'
II don't know anything about that"
IF you don't tell the truth, you will be
sent to Jail"
II know that"
DO you know what a Jail is?''
Il have never seen one. but have
heard people tell about it,
do you want to be punished and sent
there?"
NO, do not"
Would you rather get whipping
from your father for telling lie. or go
to jail?"
Il would rather get a whipping"
DO you know any difference in telling
"A lie in court and out of courtr'
No, l know no difference"
This concluded the boys testimony. and
the court then held that he should not
be allowed to testify as TO the facts Of
the case on trial. 'In deciding this
point" the court said, II have done my
best to have this boy qualified as wit
ness. but ! cannot say that 1 feel salts
fled that he thoroughly understands the
nature Of an oath or affirmation, l don't
believe he has the perfect understand
ing which the statute requires that
is not a good one, but I do not feel JUS
titled In legislating upon the matter,
though some courts have gone that far
I am perfectly willing that the boy SHOULD
testify, If 1t il possible for him to do 20
legally: no doubt he understands what
evidence is required Of him. and he Is
competent to testify under the author
tiles cited, but not under our law"
The prosecution then introduced two
more Japanese witnesses, both of whom
had seen Eakamura 30 into the house,
and later heard sounds as If of quarrel
ing: but no one had actually seen what
had occurred. That story is locked up in
the boys breast under the peculiar con-
struction Of the statutes of the Territory,
and without his evidence there was never
much hope of "a conviction. DR.. Melon
aid was also placed on the stand again
in rebuttal, but little additional infor-
nation was obtained from him.
Upon the conclusion of the prosecu-
ton Attorneys Davis and Wilder asked
the court to instruct the jury to return
verdict of mot guilty" upon the
ground that the Territory had failed to
prove their case. by the circumstantial
evidence presented The jury was ex-
cused while the attorneys presented their
arguments to the court. Attorneys Dou-
thitt and Brooks cORtended that the evil
dence was sufficient to go to the jury.
AS the testimony of the witnesses showed
that there had been quarrel and that
Sakamura was the emily one In the room
with Toma at the time excepting the
boy; and also that the evidence Of DR..
Mcdonald was sufficient to PROVE that
the death of the woman was due to a
blow from some blunt instrument The
defendants disputed this statement,
claiming that the burden of proof was
upon the Territory, and the guilt of the
...Ns
court stated that he did not believe the
circumstantial evidence to be sufficient.
and further intimated that even If the
Jury brought in verdict of guilty upon
the evidence presented. he would be COM
PEELED to set aside the verdict as con-
trary to the evidence, and order a new
trial. Upon this, Mr.. Douthitt offered to
enter nolle prosequi. In order to save
the courts time, and to preserve the
rights of the Territory. The defendant
objected. claiming that he was entitled to
an acquittal. as he had once been placed
in jeopardy.
The jury was then recalled and in
structed by the court to sign a verdict
of mot guilty" on the ground that the
eircumstantial evidence did not chow be-
yOnd a reasonable doubt that the man
was guilty, or that a verdict of guilty
was the only hypothesis which could be
deduced from the evidence before the
court. In accordance with the instruc-
tions. p. c. Jones signed the verdict, and |
the jury was discharged. the court thank
ing the members warmly for their ser.
vices during the term. They We're ex-
cused until this morning, to report to
Judge Little.
The entire jury will be excused for the |
term this morning. There is a will case
before Judge Gear today, and the Jury !
hearing that matter will probably be the !
only one i'm service today