OPINION OF THE COURT BY
GALBRAITH, J.
Yoshikawa Dengiro, a Japanese, was convicted of the murder of Yoshiaya Kos'alm, a fellow countryman, on the 26th day of May, A. D. 1902, at Kapaa, Island of Kauai, Territory of Hawaii, and sentenced to be hung. Three exceptions taken to alleged errors of law during the course of the trial and embodied in a bill of exceptions, duly allowed, are urged as grounds for reversal of the judgment and for ordering a new trial.
[65]*65It appears that the deceased and bis wife were plantation laborers and lived in a one roomed hut or house, at Kapaa, Kauai; that the deceased was 47 years of age and his wife 39; that they had been married 21 years; that the defendant was 20 years old and was the adopted son of the deceased and his wife, Yoshikawa Ichi; that they bad caused him to come to the islands from Japan, about three months prior to the homicide, and that he bad lived in the but with the deceased and wife.
The wife of the deceased was the principal witness for the prosecution. She testified in substance that she, the deceased, and the defendant bad resided together in the house for about three months prior to May 26, 1902, that the defendant did not work but loafed around the house and the deceased told him on May 26, 1902, to go to Honolulu; that the defendant said be would go and left the house about 7 o’clock in the evening of that day; that the defendant remained away until about 11 o’clock that night when be came to the door of the but and called out for bis clothes; that the deceased arose from bed and picked up the clothes which were tied in a bundle and lying on the floor opened the door and passed the bundle out to the defendant; that immediately the door was opened the defendant without saying a word commenced to shoot at the deceased, firing three shots in rapid succession; that the deceased was shot in the neck but did not fall and started out of the house towards the defendant and followed him around to the rear of the house; that the lamp was burning brightly in the room but it was dark outside; that the witness being very much frightened at the shooting arose from bed and ran out of the house and bid under a grass but near by and after she reached the but she beard five more shots fired from the rear of the house in the direction where the deceased and defendant disappeared.
Sometime later that night the police found the dead body of the deceased in the rear of the house and there were eight or nine bullet wounds on it. About the same time the defendant was arrested near the house and a revolver and cartridges were found in the sleeve of bis kimono. It was shown that the defendant purchased the revolver and cartridges at the neighbor[66]*66ing store about five o’clock in the afternoon of May 26, 1902. It was shown that the wounds on the body of the deceased were made by balls from a revolver similar in calibre to that found on the defendant.
The defendant testified in his own behalf in substance as follows: that on the day of the tragedy and the day preceding his father had been drinking saki freely and had beaten his mother and when he interfered had struck the defendant and had threatened to kill him; that before he was told to go to Honolulu and before he left the house in the evening of the 26th of'May his father was busy sharpening a knife (described as a vegetable knife with blade 4 inches in length) and was “acting crazy like;” that he bought the revolver to protect himself because he was going to Honolulu; that when he returned to the house at night for his clothes, he went to the door and called out and then sat down in a chair to wait for the clothes to be handed him; that when the deceased opened the door and saw the witness he threw the bundle of clothes at him and came towards him with the knife in his uplifted hand; that from his attitude and action and the previous threats the witness thought that the deceased intended to kill him and he shot three times at his legs and then ran away and did not see the deceased afterwards.
The first exception was to the ruling of the court admitting the revolver in evidence on the ground that the identification was incomplete. The error in this ruling, if any, was fully cured by subsequent testimony and the admission of the defendant.
The second exception was to one of the instructions of the court to the jury excejffed to at the time and duly embodied in the bill of exceptions wherein the court said: “You have heard the evidence of the prosecution offered in proof of this charge. I give you a condensed synopsis of it, namely, that of the wife of Iiosaku detailing the circumstances of the shooting; of Mau Kee, who testifies that the defendant bought of him at his store at Kapaa on the 26th of May at 5 P. M. a revolver, 32 caliber and 50 cartridges 32 caliber paying $1.50 for the pistol and $1 for cartridges. He testified that defendant was the only Jap[67]*67anese to whom be bad sold a revolver. Deputy Sheriff Haae testifies that be went to tbe bouse of Kosaku between 11 and 12 o’clock on tbe niglit of Hay 26. Took defendant in custody, found revolver and cartridges on bis person in bis sleeve. Tbe revolver was loaded, saw Kosaku dead back of tbe bouse. There were eight wounds on bis body, on face and neck and side. Next day went back and searched for empty shells found some in front of bouse and some behind it. Tbe shells were of 32 caliber. Tbe police officer Kumuao testifies that be saw defendant purchasing a 32 caliber revolver at Hau Kee’s store on Hay 26th, a small 6 chamber revolver 32 caliber. Sheriff Coney testifies that be came to Kosaku’s bouse at Ka-paa. Found his dead body with not less than eight bullet wounds in it. Went to tbe place where tbe body was said to be, found there this bullet No. 32 produced in evidence, back of bouse between gate and water-closet. Haae banded me tbe revolver and cartridges taken from defendant. They have been in my possession ever since. Seven empty shells were found, some near corner of bouse. Dr. Waughop testified that be examined tbe dead body of Kosaku, found nine bullet wounds. He identified one bullet produced in court as tbe one be took from a rib of Kosaku in which it was imbedded. Hr. Hice testified as to tbe caliber of tbe pistol tbe empty shell being number 32.” This summary is confined entirely to tbe evidence of tbe prosecution. K o reference is made to tbe testimony of tbe defendant nor Avere tbe jury reminded in this instruction or in any other part of tbe charge that they were, under tbe laAV, tbe “exclusive judges of tbe facts.”
The statute defining the province of the jury in jury trials in this Territory reads as follows: “The jury shall in all cases be exclusive judges of the facts in suits tried before them, and the judge or justice presiding at any jury trial (hereinafter named the court), shall in no case comment upon the character, quality, strength, weakness or credibility of any evidence submitted or upon the character, attitude, appearance, motive or reliability of any witness sworn in a cause. Provided, however, that nothing herein shall be construed to prohibit tbe [68]*68court from charging the jury whether there is or is not evidence, (indicating the evidence), tending to establishing or to rebut any specific fact involved in the cause, nor shall it be construed to prohibit the setting aside of a verdict rendered by such jury, in a proper case, as being against the weight of the evidence, and the granting of a new trial therein.” Sec. 1355, C. L.
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OPINION OF THE COURT BY
GALBRAITH, J.
Yoshikawa Dengiro, a Japanese, was convicted of the murder of Yoshiaya Kos'alm, a fellow countryman, on the 26th day of May, A. D. 1902, at Kapaa, Island of Kauai, Territory of Hawaii, and sentenced to be hung. Three exceptions taken to alleged errors of law during the course of the trial and embodied in a bill of exceptions, duly allowed, are urged as grounds for reversal of the judgment and for ordering a new trial.
[65]*65It appears that the deceased and bis wife were plantation laborers and lived in a one roomed hut or house, at Kapaa, Kauai; that the deceased was 47 years of age and his wife 39; that they had been married 21 years; that the defendant was 20 years old and was the adopted son of the deceased and his wife, Yoshikawa Ichi; that they bad caused him to come to the islands from Japan, about three months prior to the homicide, and that he bad lived in the but with the deceased and wife.
The wife of the deceased was the principal witness for the prosecution. She testified in substance that she, the deceased, and the defendant bad resided together in the house for about three months prior to May 26, 1902, that the defendant did not work but loafed around the house and the deceased told him on May 26, 1902, to go to Honolulu; that the defendant said be would go and left the house about 7 o’clock in the evening of that day; that the defendant remained away until about 11 o’clock that night when be came to the door of the but and called out for bis clothes; that the deceased arose from bed and picked up the clothes which were tied in a bundle and lying on the floor opened the door and passed the bundle out to the defendant; that immediately the door was opened the defendant without saying a word commenced to shoot at the deceased, firing three shots in rapid succession; that the deceased was shot in the neck but did not fall and started out of the house towards the defendant and followed him around to the rear of the house; that the lamp was burning brightly in the room but it was dark outside; that the witness being very much frightened at the shooting arose from bed and ran out of the house and bid under a grass but near by and after she reached the but she beard five more shots fired from the rear of the house in the direction where the deceased and defendant disappeared.
Sometime later that night the police found the dead body of the deceased in the rear of the house and there were eight or nine bullet wounds on it. About the same time the defendant was arrested near the house and a revolver and cartridges were found in the sleeve of bis kimono. It was shown that the defendant purchased the revolver and cartridges at the neighbor[66]*66ing store about five o’clock in the afternoon of May 26, 1902. It was shown that the wounds on the body of the deceased were made by balls from a revolver similar in calibre to that found on the defendant.
The defendant testified in his own behalf in substance as follows: that on the day of the tragedy and the day preceding his father had been drinking saki freely and had beaten his mother and when he interfered had struck the defendant and had threatened to kill him; that before he was told to go to Honolulu and before he left the house in the evening of the 26th of'May his father was busy sharpening a knife (described as a vegetable knife with blade 4 inches in length) and was “acting crazy like;” that he bought the revolver to protect himself because he was going to Honolulu; that when he returned to the house at night for his clothes, he went to the door and called out and then sat down in a chair to wait for the clothes to be handed him; that when the deceased opened the door and saw the witness he threw the bundle of clothes at him and came towards him with the knife in his uplifted hand; that from his attitude and action and the previous threats the witness thought that the deceased intended to kill him and he shot three times at his legs and then ran away and did not see the deceased afterwards.
The first exception was to the ruling of the court admitting the revolver in evidence on the ground that the identification was incomplete. The error in this ruling, if any, was fully cured by subsequent testimony and the admission of the defendant.
The second exception was to one of the instructions of the court to the jury excejffed to at the time and duly embodied in the bill of exceptions wherein the court said: “You have heard the evidence of the prosecution offered in proof of this charge. I give you a condensed synopsis of it, namely, that of the wife of Iiosaku detailing the circumstances of the shooting; of Mau Kee, who testifies that the defendant bought of him at his store at Kapaa on the 26th of May at 5 P. M. a revolver, 32 caliber and 50 cartridges 32 caliber paying $1.50 for the pistol and $1 for cartridges. He testified that defendant was the only Jap[67]*67anese to whom be bad sold a revolver. Deputy Sheriff Haae testifies that be went to tbe bouse of Kosaku between 11 and 12 o’clock on tbe niglit of Hay 26. Took defendant in custody, found revolver and cartridges on bis person in bis sleeve. Tbe revolver was loaded, saw Kosaku dead back of tbe bouse. There were eight wounds on bis body, on face and neck and side. Next day went back and searched for empty shells found some in front of bouse and some behind it. Tbe shells were of 32 caliber. Tbe police officer Kumuao testifies that be saw defendant purchasing a 32 caliber revolver at Hau Kee’s store on Hay 26th, a small 6 chamber revolver 32 caliber. Sheriff Coney testifies that be came to Kosaku’s bouse at Ka-paa. Found his dead body with not less than eight bullet wounds in it. Went to tbe place where tbe body was said to be, found there this bullet No. 32 produced in evidence, back of bouse between gate and water-closet. Haae banded me tbe revolver and cartridges taken from defendant. They have been in my possession ever since. Seven empty shells were found, some near corner of bouse. Dr. Waughop testified that be examined tbe dead body of Kosaku, found nine bullet wounds. He identified one bullet produced in court as tbe one be took from a rib of Kosaku in which it was imbedded. Hr. Hice testified as to tbe caliber of tbe pistol tbe empty shell being number 32.” This summary is confined entirely to tbe evidence of tbe prosecution. K o reference is made to tbe testimony of tbe defendant nor Avere tbe jury reminded in this instruction or in any other part of tbe charge that they were, under tbe laAV, tbe “exclusive judges of tbe facts.”
The statute defining the province of the jury in jury trials in this Territory reads as follows: “The jury shall in all cases be exclusive judges of the facts in suits tried before them, and the judge or justice presiding at any jury trial (hereinafter named the court), shall in no case comment upon the character, quality, strength, weakness or credibility of any evidence submitted or upon the character, attitude, appearance, motive or reliability of any witness sworn in a cause. Provided, however, that nothing herein shall be construed to prohibit tbe [68]*68court from charging the jury whether there is or is not evidence, (indicating the evidence), tending to establishing or to rebut any specific fact involved in the cause, nor shall it be construed to prohibit the setting aside of a verdict rendered by such jury, in a proper case, as being against the weight of the evidence, and the granting of a new trial therein.” Sec. 1355, C. L. This statute makes the jury the “exclusive judges of the facts” and does not require the court to make a summary or synopsis of the evidence for them. It is contended by the attorney-general that the court had a right to make a fair summary of the evidence to the jury. This may be true but a summary that only considers the evidence of one side and totally ignores that of the other cannot be said to be a fair summary. This synopsis in the charge complained of was not fair to the defendant for the reason that it ignored his defense and his testimony in support of it altogether.
“We assume it to be the law, that, while it is not, in this state, the duty of the trial judge to sum up the evidence to the jury, yet it is not improper to do so providing it is fairly done, 'and all the material evidence on both sides is fairly presented. The judge should not single out isolated parts of the testimony, and instruct as to the law arising on the facts which such testimony tends to prove, nor give undue prominence to certain portions of it, and especially ought he not to review with synopsis only those facts which have a tendency to establish one side of the case. When one single fact is selected and strongly commented on, the tendency is to distort its importance in the estimation of the jury, and to concentrate attention too intently upon it, to the undervaluing of the rest of the evidence.” Morgan v. The State, 48 O. St. 371, 377, 378; Thompson on Charging the Jury, p. 111; Shank v. The State, 25 Ind. 207, 209; The State v. McNeill, 93 N. C. 552, 557. People v. Lyons, 49 Mich. 78.
The judge’s synopsis of the evidence for the Territory given without reminding the jury that under the law they were the exclusive judges of the facts may be said to have been an invasion of the province of the jury by the court or at least to have [69]*69given undue prominence to the evidence for the prosecution and to have overlooked the real issue in the case. The shooting was admitted by the defendant. The real issue in the case under the testimony was whether or not there was any justification for the killing. This issue seems to have been entirely ignored. There were but two eye-witnesses to the tragedy or any part of it — the mother and the defendant.
S. K. Kaeo and Creighton & Correa for appellant.
L. Andrews, Attorney-General, and William S. Fleming for Territory.
The one testified for the Territory and the other for the defense. Their evidence was conflicting to a degree. If the jury believed the testimony of the mother the defendant was guilty of the crime charged and if they believed his story he was not guilty. The defendant was on trial for his life. He had a right to demand that his evidence with that for the Territory should be submitted to the jury under proper instructions on the law without undue prominence being given to any part of it. This right was denied him and on this account we cannot say that the defendant had what every one accused of crime is entitled to, namely, a fair trial. For this reason the exception is sustained and the verdict of conviction is set aside and the cause is remanded to the Circuit Court of the fifth Circuit with direction to grant a new trial.