The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1916-08-08
Supreme Court 0verruIeS Defen-
dant's Exceptions In ConVic-
ton BY Jury Trial
CLOSE OF L0NG-FoUGHT
ASSAULT AND BATTERY CASE
Associate Justice QuarIes Files
Lengthy Opinion Dissenting
From Majority

with the structural iron workers or
90 serve four months imprisonment in
the city Jail for assault and battery
he committed on a Part Cherokee In.
dian named Terry in a saloon in Hon.
olulu quite a while ago.
Curran's exceptions to his conviction
by a jury in Judge Ashford s court
we're overrulod yesterday by the su
preme court in a majority opinion writ
ten by Chief Justice Robertson and
coneurred in by Associate Justice Wat
son. Associate Justice Quarles filed q
Bixteen-Page dissenting opinion. The
majority opinion covered nine pages.
The main exception was over the ad.
mission of the testimony of a witness
taken from the proceedings in the first
trial of the case, which has resulted
In a failure of the jury 10 agree. When
tho second trial came up, that at
which Curran was convicted. this par.
ticular witness was in the mainland.
Evidence Was Conflicting
""In the case ct bar" says the ma.
jority opinion of the supreme court
we think the prosecution was not nPgli
gent. True, it was known that the wit
ness intended to leave the Territory
But he was an enlisted man in the
forces of the United States stationed
in this Territory who, because of the
Illness of his wife, was going to the
mainland on a limited furlOugh, and
was under the obligation of the service
to return upon its expiration.
"Under the circumstances we think
the prosecution was not obliged to dc,
tain the man by subpoena or under tho
statute relating TO the detention of
witnesses in criminal cases. If tho
case could not be postponed until the
return of the witness justice required
that the testimony given by the wit.
moss at the former trial should be ad
mitted.
"The evidence in the case was con
flicting, but the jury. If course, were
the judges of the eredibility Of the wit
ncsses and the weight of their testi
mony. There was ample evidence t.
sustain the verdict.
"The exceptions are Overruled."
The story of the case is well told il
the preamble of the majority opinion
of the supreme court, as follows:
Curran Had No Counsel
"This case comes to this court upon
the defendants bill of exceptions The
defendant has no counsel, and no brief
has been fled on his behalf The
record has nevertheless been examined
and the only exception which seems tC
require notice is that which was taken
to the admission in evidence of the
testimony of one Derda who testified al
a witness on a prior trial of the ease
but who was absent from the Territory
at the time of the trial which resulted
in the conviction of the defendant
Fl "The defendant was charged with
having committed the Offense of ault
and battery and, the jury having dis
agreed, the case was called up agar
for trial on the twenty second day q
November, 1918. At the outset cOun
sci for the defendant interpOsed an OBJ
lection to certain jurors who hac
been summoned under special venire
The court suggested that the cas-,
should be postponed for two weeks, up
on the idea, apparently, that thu
ground of objection would in the mean
Defense Agreed To Go On
rHAfter some discussion the suggest
ion was accepted by counsel. The pro
scouting attorney then stated that a
the trial was to be postponed he woulc
ask that II stard over until the fifteenth
of December for the reason that i'm
portant witness for the prosecution
meaning Derda) who was expected T.
return Ito Honolulu on November |:
would not return until December IA
by q transport due to arrive on tina
date. To this, defendants counsel OBJ
jeeted, stating that the prosecution haC
already been granted a continuance be
cause of the absence Of that witness
The upshot of the discussion which fol
lowed was a mutual agreement that tn,
trial should be proceeded with at once
1.-THE trial having been commenced
the prosecution put in testimony show
ing that the witness Derda is an enlist
ed man in the United States army sta
TONED at Honolulu; that on account o
the illness OF his wife he was grantee
q furlough for the period of eighty
three days and left for San Francisco
on the transport Logan on Septembe
=, lOIOJ lndl tnt IuIlOuBu "Oulu On
pire on December 1, and that he wa
expected TO reach Honolulu on tn
transport which would arrive on tn
thirteenth or fourteenth of December
and that he WAS not in the Territor,
at the time of the trial.
Knew Witness Was Leaving
att further appeared that the prose
cutting officers knew that the wines
was intending to leave the Territory OIL
fuTlough and took no steps to subpOe nj
him or have him detained as witness
The court reporter was then called ant
testified 10 having recorded the test
mony of Berda as given on the previOu
trial of the case, and that he had cor
rectly Transcribed his shorthand notes
The transcript of the testimony Of tn
witness was then offered in evidenc
and admitted over the objection Of tn
, defendant.
'rl"The grounds of objection were stat
ed by counsel to be that the evidenc