4 Haw. 450 | Haw. | 1882
Opiuion of the Court by
This is au action of crim. con. tried at the last October Term, of this Court. The verdict was for the plaintiff, damages $2,000.
The defendant excepted to the verdict and moved fora new trial on the ground that the damages were excessive, but this point was abandoned at the argument. The defendant also took an exception to a ruling made at the trial by the Court, which will be considered later.
The verdict was rendered on the 11th October, and the Court adjourned on the 29th. On the 7th November, counsel for defendant filed certain affidavits alleging the existence of evidence, newly discovered, of gi’eat importance, objection being made to their being entertained as being filed too late,, and this Court is asked to consider this question.
Rule 6 requires affidavits to be filed in support of motions grounded on facts. We have no doubt that the Court has the power to extend the time for filing additional affidavits in support of such a motion, but the motion and'bond and some affidavit must be filed within ten days after the verdict.
The exception is to the ruling of the Court in admitting the evidence of Mrs. Mills, the defendant’s wife, who was called as a witness by the plaintiff.
Section 51 of Chapter 32 of the Laws of 1876, consolidating the rules of evidence, declares that parties to an action and the husbands and wives of such parties respectively shall (except as hereinafter mentioned,) be competent and compel-lable to give evidence. The exceptions are mentioned in Section 52, where the testimony of a defendant in a criminal proceeding is treated, and in Section 53, where it is enacted “ that nothing herein contained ******** shall in any criminal proceeding render any husband competent or compellable to give evidence against his wife, or any wife competent or compellable to give evidence against her husband, except in such cases where such evidence may now be given,” and allowing in a criminal proceeding the testimony of husband or wife for the defense.
Briefly, Section 51 renders competent and compellable the testimony of a wife for or against her husband in all cases and
The evidence of Mrs. Mills, not being a communication made to her by her husband during marriage, was properly admitted under our law, and the exceptions are accordingly overruled.