The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1910-03-05

language were aware that those read
ing or hearing the same would under
stand from it."
"13. While the law requires that,
to find the defendants guilty in this
case, the evidence should show that
they were acting in concert, still it is
not necessary that it should be possi
lively proved that they actually met
together and agreed to do the acts
charged in the complaint. Such
concert of action may be proved from
circumstances, and if, from the evil
dence the jury believe beyond a rea-
sonable doubt that the defendants act
ed together, each aiding in his own
way, it would be sufficient"
The instructions excepted to cor
rectly state the law.
The following citations are apple
able to the case: Queen V. Most, L. X.
7 Q. B. 253, as to newspaper article
naturally and reasonably intended
ITO incite and encourage or to endeav-
or to persuade persons who should
read that article" to commit crime;
Loewe v. Lawler, 2OS U. S. 274, lille
gality of boycott, and as to same and
also picketing see Beck V. Transfers
Protective Union, 11S Mich 497, SIS,
$40; so State v. Stewart, SO VT. 27S,
and State v. Ryan, 80 Pac (Or) 7O5;
Wigmore's Ev. Sec 1913 as to effect
of unexplained possession of letters,
and see cases cited IN H. 2 h.;
Wright on Grim. Conspiracies Am
Cases, 212, as to circumstances which
imply an agreement.
The exception to the denial of the
motion in arrest of judgment, which
, in the regular order of pleading would
/, follow the motion for new trial, is
/. now to be considered.
During the trial juror was with
drGTn by consent of the defendants
and CT the prosecution, the trial was
continued and a verdict rendered by
eleven jurors. The exception to the de-
NAL of the motion in arrest of judge
ment presents the question whether
this was allowable under Art. of the
constitution, The Trial of all Crimes,
except in Cases of Impeachment, shall
be by jury" of the fifth amendment,
No person shall be held to answer
for a capital or otherwise infamous
crime, unless on presentment or in
'dictmert of a Grand Jury (indictmenJs
being triable by common law juries
only, OF the sixth amendment, I'm all
criminal prosecutions, the accused shall
enjoy the right of speedy and public
trial, by an impartial jury of he State
and district wherein the crime shall
have been committed or under Sec.
80 OF the Organic Act, mo person shall
be convicted in any criminal case ex-
cept by unanimous verdict of the Jury. >
The defendants contend that they
are charged in the complaint with con-
spiracy in the first degree since the
acts of violence and assaults and bat
teries which they are charged with haY-
= ing conspired to instigate may include
telonies, to instigate which is by sta
tute, Sec. 3099 r. L., a conspiracy in
the first degree punishable by I'M
prisonment at hard labor not more
than ten years or by fine not exceeding
$l'OOO; hence; as they claim, an In
dictment was requisite under the fifth
amendment requiring a trial by a
common law jury of twelve Jurors.
But if an indictment had been pre-
. sented describing the offense as 1t is
, described in the complaint a sentence
: Tor conspiracy in the first degree
t could not have been imposed since The
l. essential elements of the offense are
3 not set forth with certainty and parti
cularity, and by sec. 31O1 R. L. Con
l. spiracy not appearing to be in the
+ first or second degree, is in the thirC
L degree, and shall be punished by i'm
prlsonment at hard labor not exceeding
one year and by fine MOI
i exceeding four hundred dollars" A
= felony is defined in Sec. 27O2 r. L., al
:. An offense that is punishable witt
. death or with Imprisonment for long
at hard labor or otherwise in the dis
:, offense not felony is a misdemeanor.
-. Ib. The complaint does not charge
r. statutory felony punishable by i'm
d prisonment for more than one yea
e unless the authorized sentence of on
l. years Imprisonment and $500 fine is Il
n be regarded as Imprisonment for NOR,
e than one year because of the statutor!
e requirement, Secs. 1887 and 1888 r. L.
d as amended by Act 80 S. L. 1905, ina
3, in case of nonpayment of fine ant
n costs the convicted person "shall b.
n committed to prison there to remail
at hard labor or otherwise in the us
70 erection of the court or magistrate unit
: such judgment is satisfied which /
Il followed by provision that hard labo