The Hawaiian gazette., 1903-06-26
JUDGE HARDY on
DENGlRO'S TRIAL

In n letter to the Attorney General
Judge Hardy of the Fifth Judicial Cir
cult says, anent the decision OF the
Supreme Court that Dengiro did not get
fair trial ut his nnnds.
In the case of the Territory OF Ha-
wall VS.. Dengiro, murder In the first
degree. heard by the Supreme Court
on exceptions from the Fifth Circuit
Court, the trial judge of the latter
court is charged with unfairness In his
charge to the jury. The Supreme Court
says. HE (defendanD had n right to
demand that his evidence with that of
the Territory should be submitted to
the jury under proper instructions on
the law, without undue prominence be-
ing given to any part of it, / affirm
that this was done. The instructions
asked for by defendants counsel were
given in full. The charge went beyond
the Instructions in favor OF defendant
by saying that II the jury believed the
testimony of defendant that he bought
the pistol with which he killed his
foster father) on the afternoon pre-
ceding the killing, for the purpose OF
self protection at Honolulu, where he
was about to co. then that would tend
to prove that he was not at that time
premeditating murder. THE charge Is
not before me, l give the point in sub
stance.l The killing was admitted by
the defendant. He claimed it was in
self-defence. He had been fully heard
in his own behalf, and an hour had not
elapsed after he left the witness stand
when the jury was charged.
Was there anv need n rpCaDitula-
ton of what he testified, in order to
bring it to the recollection of the jury?
1t was fresh in their minds. Why then
was the testimony of the five wit
nesses for the Territory recapitulated?
For the very purpose of bringing their
evidence afresh to the minds of the
jury, and for no other purpose what
ever. There was not particle of
comment, or of one-sided statement of
that evidence. The case seemed so
clear to the jury, that as soon as they
organized and voted they found ver
dict of guilty.
don't believe that the omission to
recapitulate defendants testimony had
the weight of a feather upon the YER
dict. The scale seemed to immensely
preponderate against him. Had there
been other witnesses for him making 1t
requisite to recapitulate, it would have
been done. There was no thought of a
denial, or of the least Withholding of
his rights. And it comes as an unwel-
come surprise, not only to the trial
judge but to many others who sat
through the trial, that the appellate
court has found that the defendant did
not have a fair trial. Both counsel for
the defendant stated publicly that "he
had had a fair trial. One of them
has assured the writer, that they had
no expectation of getting a new trial;
that he considered it IAN ideally fair
trial"
That was the opinion of the trial
judge, also.
During the taking of the testimony
no exceptions of Importance were TAX
en-. There was very little of the usual
friction between counsel. and none be-
tween the counsel and the bench. The
instructions asked for defendant were
given. The exception to the charge
made at the time was ito the brief
resume Of the evidence for the Ter
ritory," not the unfairness of not re-
captivating defendants evidence.
1t is my decided impression that If
the Honorable Judges of the Supreme
Court had been present at the trial
they would not have pronounced it I'M
fair
The Fifth Circuit Court will of course
obey the mandate of the Supreme
Court, and give Dengiro a new trial.
but the trial judge begs leave to dep
recate the characterization of the first
trial as unfair, contained in the decision
of our highest court.
J. HARDY.