The Pacific commercial advertiser. [volume], July 31, 1893, Image 6

About The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921

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DALLY PACliiC COMMERCIAL ADVEKT1SEK, JULY 31, 1893.
In the Supreme Court of the Ha
waiian Islands.
Jiw-e Tekm, 1803.
Provisional Government ok the
Hawaiian Islands vs. Ciurlej
Arc.rsr IIerino.
EEIOT'.E JVVV, C. J, EICEEKTON AND
iREAR, JJ.
A chary in the Titrk t Court in the?e
wonli held sullicient "Defendant is
charged with murder in the lir;t de
cree, in that he did at Honolulu, Oahu.
on the 1-stli ilay of March. 12. make a
murtieroui a-i-ault with a loaded pistol
upon one D. L. ilur.t-man. in conse
quence of which said as-ault the said
J. I.. Huntsman died oa the morning
of March L'uth, 1-'J;" the Magistrate
having corrected in his mittimus of
committal the year l'Jl to IVM.
It was proper practice to name the Pro
visional Government of the Hawaiian
I-slandj as the prosecuting party.
The validity of the appointment of
Judje Cooper who presided at the
trial, was settled by this Court in a
decision rendered Jane 27th. on
the question raised as to the validity of
Mr. Ju-dirc I'rear'.s appointment both
appointments resting upon the same
law.
An indictment charyinj; that the person
killed was "one I. L. Huntsman" held
to be not bad, as the Court in the ab
sence of evidence will not presume that
he has any Christian name other than
Mich letter or letters. The presumption
that every person has a Christian name
does not obtain in this country.
An indictment charging in one count
murder, without designating the man
ner and means of death as authorized
by statute i.s not bad for duplicity when
a second count is inserted giving the
particulars of Mich ofiense.
A demurrer to the indictment having
been overruled and exceptions taken
thereto, it was not error to proceed
with the trial, pending the hearing on
the exceptions.
The defendant stood mute, and refused
to plead. It was proper by statute
(section 3, Crim. Procedure Act, p.
I'AS Compiled Laws) to enter a xlea of
" not guilty."
It was not error to allow a magiatjate
to read from his notes of evidence of a
witness taken down in the preliminary
examination, from an interpreter, the
evidence having been given in the Ha
waiian language, the interpreter hav
ing been sworn as a wi'ness and giving
tiis own statement of what the witness
hail said, the two statements agreeing
substantially.
The deceased, a few hours before his
death from certain pistol-shot wound?,
said good-bye to his friend, and on
being told by him that he would call
and see him in the morning, replied:
" I don't think you will see me in the
morning." Deceased alsj gave his
books to a friend ami requested that
his trunk, containing his clothing and
other personal effects, be sent to his
mother at Haley, in Idaho, IT. S. A.
Held satisfactory evidence" that de
ceased believed he was about to die,
and his statements then made a.s to
who his assailant was and as to other
circumstances, were properly admitted
as dying declarations.
10.
11.
This admission is not prohibited by the
Constitution. Art. 7.
The burden docs not rest upon the pro
secution of showing, where the wound
is adequate to produce death, that the
medical treatment was skillful, and did
not in any way contribute to the death,
or that decease! had no latent disease
or ailment to which his death might be
attributable. Where the wound caused
bv defendant is adequate antl cal
culated to produce death, neglect or
maltreatment will not excuse defend
ant. Itwa3 not error for the Court to pass
sentence for manslaughter in the se
cond degree, on a written verdict in the
Hawaiian language finding the de
fendant guilty of manslaughter in the
secon ddegree. the character for "se
cond " being the figure "2.
12.
OPINION OF THE COURT BY JUDD, C.J.
The jury at tbo May term, 1S93, of
the Circuit Conrt, First Circuit,
found tbo defendant guilty of man
slaughter in the second degree upon
an indictment charging him with the
murder cf one D. L. Huntsman, and
he wa3 duly sentenced. A bill of exceptions-was"
allowed defendant to
the Supremo Court. "
The various points raised will be
stated and discussed in order. The
first is tbo plea to tbo jurisdiction
in which defendant contends (first)
that ho was not charged, examined
or committed for tbo murder of D. Lt.
IIunt3man as set forth in tho indict
ment. Tbo charge uiado in tho Dis
trict Court was as follows: "De
fendant is charged with murder in
the first degree, in that ho did at
Honolulu, Oahu, on the ISth day of
March, 1S92, make a murderous as
sault with a loaded pistol upon one
D. L. Huntsman, in consequence of
which said assault the said D. L.
Huntsman died on the morning of
March 20th, 1S92." No plea was
made, and, after hearing the evi
dence, tho Magistrate committed de
fendant for trial at the Circuit Court
of the First Circuit upon the charge
above set forth, reciting it as made
by the prosecution " except that said
Magistrate finds that the dates in
said chargo should be March
18th, 1893, and March 20tb,
1S93, and that the acts alleged
and proven occurred respectively on
those last named dates." We are of
opinion that tho charge was suffici
ently full and accurate. It charged
defendant with murder in the first
degree and specified the method of
killing, the date and place of the
murderous assault, the name of the
person killed and the date of his
death. Tho correction made by the
Magistrate of the year 1892 to 1893
was to set right an evident clerical
error and does not vitiate the charge.
The second point attacks the validity
of the appointment of Circuit Judge
Cooper who presided at the trial of
this case in the Circuit Court. In
a preliminary objection to the sit
ting of Mr. Justice Frear in this
case tho same question was raised,
and we refer to our opinion rend
ered on the 27th Juno last over
ruling the objection a3 decisive of
this point against the defendant's
contention. The defendant, the plea
to tbj jurisdiction having been over
ruled by Judge Whiting and ex
cepted to, demurred to the indict
ment and raised the question (third)
whether there is any authority of
law for the adoption of the
name of the Provisional Gov
ernment of tho Hawaiian Is
lands as tho prosecuting body.
There i3 no statute designating in
what name processes, waxrants or
indictments should be entitled.
Under the monarchy it wa3 custom
ary, but not invariably so, to entitle
them in the name of the reigning
sovereign. And this wa3 proper as
criminal prosecutions were by the
Crown which represented the State.
On tbo change of Government in
Jannary last, this Court ordered the
processes of Court to be entitled "in
the name of the Provisional Govern
ment of the Hawaiian Islands,"
which was equally proper as indi
cating the authority for instituting
criminal prosecutions. In a republic
the proper form would be "In the
name of the people of the "
naming the State.
Fourth. The demurer alleges that
"the indictment does not with suffici
ent certainty designate and identify
any person whom this defendant is
therein alleged to have killed and
murdered." The indictment charges
that defendant "did kill and murder
one D. L. Huntsman," and it is con
tended by defendant's counsel that
this is a fatal defect that to describe
tho person assailed not by hi3 Chris
tian name but by initials and sur
name is insufficient. The early Eng
lish cases to which we are referred,
show that the letter of the alphabet
which is a vowel may be the name of
a person, and there is contrariety in
the cases upon the question whether
one of these letters which is a conso
nant can constitute a name. In
Tweedy vs. J arris, 27 Conn., 42, the
Court held that a consonant may bo
presumed to be an entire Christian
name as well as a vowel. The object,
however, of naming the deceased in
an indictment of this character is to
identify him and to admit proof that
tho person killed was the one named
in the indictment. As Wharton, in
his Crim. Evidence, Sec. 99, says,
"The real question is, what did tho
defendant call himself, and permit
himself to be called? By this name
he is to be indicted. If ho calls him
self by initials and signs his name
by initials, by initials he may be
described in an indictment." Vander
mark et al. vs. the People, 47 111., 722,
sustains this view. The Court say,
"It i3 said that the full Christian
name cf the prosecuting witness
should have been given, and that the
initials were not sufficient. It is a
rule of pleading that the name of
the person receiving the injury, when
known, must be set out in the indict
ment, that the accused may know of
what particular offense be is charged,
But when the person is described by
the initials of bis Christian name,
and he is as well known by that as
his full name, the object of the rule is
obtained and no error is committed.
And it was a question for the jury
whether he was known in the com
munity as well by that as his full
name."
There are many cases which taka
the ground that an indictment
against a man by the initials of hi3
christian name only is subject to
plea in abatement, unless the grand
jury add that his name is unknown
to "them otherwise than is set out.
U. S. vs. Upham, 43 Fed., K. CS ;
Zellers vs. the State, 7 Ind., C59. In
this last case as well as in many
others the Courts say that "every
person is presumed to have a chris
tian name" and this seems to bo
the foundation for the rule that it
should be set out in full. But in
this country with a population con
sisting of many different races, many
of whom aro not Christian, and who
therefore do not have christian
names, and With an aboriginal popu
lation among whom the adoption of
christian names is of but recent
origin and not universal, it cannot
be truthfully said that such presump
tion exists. Wo aro unwilling to
take the extreme view that an indict
ment for murder is demurrable bo
cause the name of tho person killed
was not set out in full, but by initials
only.
In Wade vs. Stale, 4 S. WT. Rep.,
89G, a person was convicted of the
murder of "Smutty my darling."
Tho Court say, "If tho name of the
deceased, as alleged in the indict
ment, was tho name of a human
being, and it was this identical hu
man being that was killed, it can
make no difference that the name is
an unusual one." The statement of
the later law upon this subject we
take from 1G Amer. & Eng. Encyclop.
Law, p. 11G, ' When a party or third
person is designated in a pleading,
warrant or indictment by a surname
preceded by one or more capital
letters only, the Court, in the absence
of evidence, will not presume that he
has any christian name other than
such letter or letters." We do not
understand that there was any proof
shown to the jury that the person
killed was known by the community
or denominated by himself by any
other name than that by which he
was described in the indictment, to
wit, "D. Ij. Huntsman." The only
evidence on this point being that in
an application for letters of deniza
tion he is described as Dow Lee
Huntsman, but to this deceased
signed his name as "D. L. Hunts
man." Fifth. The indictment is alleged
to be objectionable, on the ground of
duplicity, in that it purports to set
out several offenses of different
character and degree and as having
been committed on different dates,
and contravenes the form of the
statute in such case made and pro
vided." The indictment charges that
Charles August Hering, a native Ha
waiian by birth, of Honolulu, in the
island of Oahn, at Honolulu, in the
island of Oahu, and within the juris
diction of this Honorable Court, on
on the eighteenth day of March in
the year of our Lord one thousand
eight hundred and ninety-three, with
force and arms feloniously, wilfully
and of his deliberate premeditated
malice aforethought did kill and
murder one D. L. Huntsman, and did
then and there and thereby commit
the crime of murifer in the first de
gree, contrary to the" firm of the sta
tute in such case made nd provided.
Then follows another count specify
ing substantially the shooting by the
defendant of Huntsman, on the ISth
of March, with a pistol, a nd thereby
inflicting mortal wounds, of which
Huntsman 'did suffer and languish,
and languishing did live to the 20th
of March, when he died. By the au
thority of Sec. 18 of the Criminal
Procedure Act, p. 342 Compiled Laws,
the first count would be sufficient.
This fctatnte says that "it shall not bo
necessary to set forth the manner in
wLich or the means by which the
death of the deceased was caused,
but it shall be sufficient in any in
dictment for murder to charge that
the defendant did feloniously, wil
fully and of his malice aforethought
kill and murder the deceased." The
statutory essentials were strictly fol
lowed, adding only the ingredient
made necessary by tho Act of 1S90,
Chap. LXXI., that tbe malice was
"deliberate premeditated," in order
to charge murder in the first
degree. The addition of the second
count which merely gives particulars
does not vitiate the indictment, and
it was more advantageous to the de
fendant to apprise him by the plead
ings of the particular which the
prosecution expected to prove. There
being no variance between the two
counts nor alleged to be in the evi
dence there was no occasion for the
prosecution to elect upon which it
would proceed, nor was it error for
the jury to have rendered a general
verdict.
Sixth. The demurrer having been
overruled and excepted to the de
fendant was asked to plead but pro
tested against his being required to
to do so while his exceptions to the
overruling of the demurrer were
pending and undecided and, on this
objection being overruled, defendant
excepted. Exceptions to the over
ruling of a demurrer have never
formally been held to suspend tho
trial though instances may be cited
where this Court has entertained
such exceptions before trials on the
merits. It will be found that the
prosecntion has in such cases either
consented to this procedure or it has
been unnoticed by the Court. The
general course has been to have the
exceptions noted and proceed with
tho trial, and this course as we have
remarked in several cases recently
decided, Prov. Govt. vs. Smith, Prov.
Govt. vs. Ah Un and Brown vs. Car
valho is the best course and we ad
here to it. We see no error in the
Court's ordering the trial to proceed.
Seventh. The next point is an
exception to the Court's ordering
tho plea of "r.ot guilty" to be en
tered, the defendant standing mute
and refusing to plead. This was the
proper course and followed the sta
tute, it being discretionary with the
Court. See Sec. 3G Crimiual Proce
dure Act, p. 3iS Compiled Laws.
Eighth. During the trial a wit
ness, Geo. Kuoha, was called for the
prosecution, and a foundation having
been laid, his testimony and veracity
were sought to be impeached by evi
dence of different statements made
by him in the District Court of Hono
lulu at the preliminary examination.
The objection is made that the Ma
gistrate read from notes of Kuoha's
evidence made by him at the time it
was delivered, the evidence being
given by Kuoha in Hawaiian and in
terpreted into English by Thompson,
tho Court Interpreter. We find from
the evidence transcribed by the
Stenographer that before tho Magis
trate read any part of his notes, the
interpreter, Thompson, was sworn in
the case and testified to the
jury, of his own recollection,
what the witness bad said in the
District Court, and that thereafter
the Magistrate resumed the witness
stand and read such part of the notes
of Kuoha's evidence as was requested,
which agreed substantially with what
the Interpreter had testified to.
Therefore there is no occasion for us
to say what our view would be in
case the Magistrate had merely road
from his notes evidence given to him
by an interpreter tbo interpreter
not being called or testifying.
Ninth. Tho trial Court admitted
as evidence the so-called dying
declarations mado by the deceased
Huntsman, as to who his assailant
was and ether circumstances. This
was objected to, in that it did not
appear from tho evidence of the
witnesses that Huntsman, at the time
he made the declarations, realizad
that ho was in a dying condition and
spoko under the belief and sanction
of impending death. We have ex
amined the transcribed notes of the
evidence of H. von Werthern, Jr.,
Marshal Ashley and Deputy-Marshal
Mehrtens as to the circumstances,
acts and statements attending these
declarations, and are convinced that
they justified the Court in receiving
the declarations. It is not essential
that the declarant shall state form
ally that he makes the statement
under a sense of impending death,
but it must satisfactorily appear in
some way that they were made under
the solemnity of that sanction. Kerr
Homicide, Sec. 412, et seq.
The facts succinctly stated aro
these. Huntsman received two pis
tol shots one of which was mortal on
Saturday p. m. the 18th March last.
He was taken to the Hospital and on
Sunday evening the 19th at about 11
o'clock the then Marshal Ashley and
Deputy Mehrtens with Von Werthen
a friend appeared in company with
the hospital steward at his bedside.
Ho was in a very weak condition
and had frequent lapses into sleep.
But when tho Marshal told him he
had come to take his statement he
roused and made his statement in a
weak voice, which statement was
taken down in writing. He died
early the next morning. The inter
view lasted about twenty minutes.
As it was being concluded Mehrtens
shook hands with him and said
"good-bye" and told him to rest easy
and that he would come and see him
in tho morning. To which Hunts
man after hesitating a moment saicLM
"Idon t think you will see me iauie
morning." To Von Werthen beVgave
his books and requested bicri to send
his trunk containing ,Wis clothing
and other personal ,vffects to his
mother, giving her 'ame and address
in Haley, Idaho We consider that
tho trial Courtoomantted no error in
holding thattheso facts showed the
belief of Huntsman that hi3 life was
rapidly gaming to an end and was
right in admitting his statements to
the jury as "dying declarations."
These declarations aro admitted by
necessity to prevent murder going
unpunished and form an exception
to the rule which excludes hearsay,
and are cot held to be in contraven-
tion of the constitutional principle j
(Art. 7 Const.) that the accused has
a right to meet his witnesses face to
face This constitutional ground of
objection was the tenth point made !
by defendant in his bill of excep
tions. Eleventh. The defendant requested
the Conrt to charge that "in order to
convict of either murder or man:
slaughter under this indictment, tho
jury must be satisfied by the evi
dence, beyond a reasonable doubt,
that the deceased was not only shot
and wounded by defendant, but that
the medical and surgical attendants
of deceased were guilty of no neglect
or unskillful treatment of him but
for which he might have recovered.
If the fact of his death did not result
wholly from the act of defendant,
apart from and unaided by any neg
lect or unskillfulness on the part of
the medical attendants of deceased,
then such death is not to be attri
buted to defendant and he should not
be convicted of either murder or
manslaughter.''
This was refused by the Court as
was also the next request which was,
"Unless the jury are convinced be
yond a reasonablo doubt that the
death of deceased was in no way
attributable to any latent disease or
ailment contracted before, and apart
from the wounds mentioned in the
indictment, they cannot convict de
fendant of anything more serious
than assault and battery herein."
It was proper to refuse these re
quests. Where the wound is adequate
to produce death the burden does
not rest upon the prosecution to
show that the medical and surgical
treatment of the deceased was skill
ful and that his attendants were
guilty of no neglect or unskillful
treatment, or that tho death was
wholly occasioned by the act cf de
fendant and was in no way attribut
able to neglect or unskillfulness of
his medical attendants or to any
latent disease or ailment contracted
before and apart from the wounds
mentioned in the indictment. The
authorities say that "it is immaterial
whether tho medical treatment was
proper or mistaken, if it was em
ployed in gcod faith and with com
mon knowledge and skill. Thus
where the wound is adequate and
calculated to produce death, it is
no excuse to show that had
proper caution and attention been
given a recovery might have ensued,
for neglect or maltreatment will not
excuse, except in cases where doubt
exists as to the character of the
wound. Kerr Homicide, Sec. 34, and
Stephen's Dig. Cr. L. 15G. We do
not understand in this case there was
any proof of neglect or unskilfulness
in tho treatment of Huntsman's
wounds, one of which was certainly
necessarily fatal, or that there was
any proof that he had any latent
disease.
Twelfth. The Hawaiian jury ren
dered a written verdict in their own
language : " Ua hewa ka mea i hoo
piiia no ka lawo ola ma ka degere 2,"
which is translated : " The defendant
is guilty of manslaughter in the
second degree." A motion in arrest
of judgment was, before sentence,
made, founded upon the alleged
error in the verdict, and defendant
claimed that as the degree of man
slaughter was not written out by the
jury, but was only indicated by the
figure "2," the sentence should be
for the lowest or third degree of
manslaughter. There can be no
doubt that the jury intended to find
the defendant guilty of the second
degree of manslaughter, and if the
figure had been written out "elua"
it would not be properly read "guilty
of manslaughter in the degree two,"
but, as we have said above, "guilty
of manslaughter in tho second de
degree." In the Hawaiian language
tho adjective follows the noun which
it qualities.
We find no ground upon which to
grant a now trial, and overrulo tho
exceptions.
Attorney-General Smith for prose
cution ; C. W. Ashford for de
fendant. Honolulu, July 24, 1893.
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1892.
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