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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. TWW GOODS a Fine Assortment. TILES FOR FLOOR And for Decorating Purposes; Matting of all. Kinds, Manila Cigars. Chiuese Fire Crackers, Rockets and bombs, Japanese Provision and Soy. Eand -painted Porcelain Dinner Set. A few of those ue hand-embroidered unci SATIN SCREENS, Assorted colors and patterns of Crepe Silk Shawls. Elegant Tete-a te Cups and Saucers. A fine lot of BOATS AND ACCESSORIES - A few of those handy Mosquito Urns. 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