Year: 1869




Justification of the act or the ground that it


was necessary, or that the prisoner had rea-
souable cause to think it was necessary in
order TO defend himself against violence, you
will aequii him. II you find that the act was
done under great mental excitement, with
no evidence of previous intent or malice, or
under reasonable provocation, not amount
ing TO actual Justification, you may find a
verdict OF manslaughter in the first, second,
or third degree, as you may find the justif-
cation 10 be greater or less. tThe Court
read the statutes bearing on this point, and
upon the presumption of malice, remarking
that the brutality of the set was evidence
tending TO show malice If Neville was at
the point of death from previous injuries,
when the prisoner set upon him with club,
it is no defense that those injuries, of them
selves, would have proved fatal, if the pris-
oner Immediately caused, or brought on his
death To attack and kill wounded, help
less man, is base and cowardly, and if posi-
ble, more criminal than if the deceased had
been able to defend himself You must,
however, find from the evidence that Neville
was actually living at the time he was SO set
upon, or you will acquit the prisoner, unless
you find that his death was the result of pre-
vious injuries inflicted by the prisoner. If
you find that Neville's death was caused by
the prisoner acting alone, or with Others,
with common intent to kill him, you VIII
find verdict of guilty. (The Court read
the statutes upon accessories and self-defense,
and enlarged upon the law of self-defense, as
previously laid DOWN.


The evidence shows, or, in the absence of
evidence to the contrary, it is to be presum-
ed, that the prisoners party had been living
in peace and quiet, obeying the King and the
laws, and that they were lawfully in posses
sion of their land and buildings, with per-
feet right TO remain there; that on the 18th
of October, 1868, Sheriff Neville, with large
party, whom he had summoned in the Kings
name to assist him, approached on horse
back. The evidence is conflicting as to which
side began TO throw stones. There was evil
dence of houses burned, but you will not,
without evidence, infer that this was ordered
or sanctioned by Neville, and there is no evil
dencc on that point There is evidence, un-
/ disputed, that Neville's aids, Kaumauoha
and Wahaele, rode just in front of him, and
were first stopped and attacked by some of
the prisoners party, sent out by Kaona, who
told Neville TO talk with them there; that be
rode on, not stopping, and in fact he ought
not to have stopped or retreated, if in the
proper execution of legal duty; that he
ordered those who attacked his aids, TO de-
sist, and upon their not doing so, fired his
| pisol twice, and according TO some of the
/ witnesses, called out, Surround the lanai; :"
that he was forthwith felled from his horse
by stone, and was then seized, tied and
beaten by the prisoner and Kumukahi II is
immaterial whether the fatal blow was struck
| by the prisoner, if he aided others in the un-
lawful killing.


Now, as to Neville's firing his pistol:
whether or not he was justified in so doing,
in order to defend his life, You are not called
upon to decide. Forany unnecessary violence,
had he survived, he would have been held
liable But you are TO consider that matter,
solely with view to determine whether the
subsequent acts of the prisoner were neces-
sarily in selfdefense, or were so provoked as
not to amount TO murder. You must presume,
if the contrary does not appear, that the
Sheriff was proceeding to execute lawful
business. There is evidence that he held in
his hand some paper-whether a summons
or warrant, the witness could not say. You
will consider whether, while proceeding in a
lawful way to do lawful business, he was
first resisted and obstructed by the prisoner
and the prisoners party. The Sheriff had
right to go to the door of the building IN
which any person was, upon whom he was
required to serve any process of law, and to
overcome all Illegal resistance to his doing
so. If he was not so resisted, and if he used
unnecessary violence, that would tend to ex-
teuuate the act Of the prisoner. on the ground
of provocation, or to justify it, if done under
circumstances amounting TO selfdefense.


Should you find that the prisoner inflicted
the final death-blow to Neville, in pursuance
of Kaona's order to kill him, at time when
no danger to the prisoner was, or could be,
apprehended from Neville, then there would
be no justification, except on the ground of
insanity or duress. The orders of Kaona
were no excuse for doing an unlawful act,
unless those orders were enforced in q man
ner amounting to compulsion. The evidence
is, that the prisoner was not forced, but vol
unteered. The evidence, offered TO show that
the party to which the prisoner belonged,
were under the delusion that Kaona was di-
vinely inspired, and that they could safely do
his bidding, was excluded, because it was
| not brought home TO the prisoner, to show
that be was personally so deIuded; if he
were, it would be ground of defense only on
the ground that the prisoner was insane.
Mans legal responsibility must rest on his
being free to choose the right or wrong, and
his ability to know whether the act charged
was right or not. The prisoners counsel
{ offered no direct evidence that he was insane
or deluded, but if you find, from the pre-
ponderance of the evidence, that the prisoner
did the act under such delusion, and under
conviction that he was ordered to do this by
power superior to all human authority, you
will aequit him. But If you do not regard
him as acting under this delusion, you can
not scquit him on the ground that he thought
he had a right to do this. No one can set up
standard of civil right or wrong, or author
itv contrary TO the law of the land