10 Haw. 442 | Haw. | 1896
OPINION OP THE COURT BY
The defendants were convicted of the offense of adultery at the last (June) term of the Circuit Court, Second Circuit. The adultery was laid as having been committed on the 18th of April last, at Pauwela, Makawao, Maui. The exceptions taken are, first, to the admissibility of evidence to prove the marriage of Awa Puu (w) to one Puu, she, Awa, being alleged
The court overruled the objection and the prosecution put in evidence a marriage certificate by Father Gulstan that Victoria Awa and Puu were married by him in Makawao, Maui, on the 6th January, 1891. The same objections were made to this evidence as were made to the former. The court admitted the evidence which was excepted to. Later, the prosecution offered the license to Puu and Victoria Awa to marry, dated 5th January, 1891, given by one Hao Kawaimaka signing himself as “An agent to grant marriage licenses for the District of Makawao, Maui,” and defendants’ counsel objected to the introduction of this license on the ground that the said Hao Kawaimaka was not proven to be authorized to issue such a license and that his signature to the license was not proven. The admission of this evidence is also made a ground of exception.
The exceptions should be overruled. As we have seen in Republic of Hawaii v. Kuhia and Muolo( ante, p. 440), on a charge of adultery, marriage must be proved by direct evidence. The record and the certificate of it in evidence were required to be made by the statute then in force. Compiled Laws, p. 424. Upon this matter Bishop on Marriage & Divorce, I Vol.
This statement of the law that a certificate of a marriage record is admissible we adopt, it being sound in principle and in accordance with the practice of our courts. The certificate of the priest (the second paper produced) we must remember is not a certificate of the marriage record, but a mere declaration of an authorized person that he'had solemnized the marriage. The admissibility of such a certificate, not under oath, unaccompanied by proofs of its delivery at the time to the parties, is in many jurisdictions deemed inadmissible. See Bishop, Mar. & Div. Sec. 473 a. Having found that the certificate of the marriage record was admissible, it is not necessary to pass upon the admissibility of a certificate of the bare fact of a marriage having been performed.
On the point that the prosecution must prove that a license to marry must be proven, we hold that this is not necessary. “When the law casts upon an official person a duty connected with his office, and the time for its performance transpires, the prima facie presumption is that it is done.” 1 Bishop, Mar. & Div. Sec. 450. The presumption holds good until the contrary is shown. It was therefore not necessary to produce the license to marry nor to prove that the agent who granted it had the requisite authority.
The further objection is that there was no proof of the identity of the parties, Pun and Awa, who are mentioned in the marriage record. There is evidence sent up that the parties lived together at Pauwela, Maui, as man and wife, for some years after the date of the alleged marriage, also that the husband Pun went with the officers who found'the wife in suspicious relations with Waipa. This went to the jury under
Defendants also except to tbe introduction of proof of an act of illicit intercourse prior to that laid in tbe charge, to-wit, on tbe 8th March. This evidence was admitted and tbe court instructed tbe jury that they could not convict tbe defendants of adultery on tbe 8th March, but, if they believed tbe testimony, they might take it into consideration as bearing upon their relations to one another, as to their-undue intimacy and adulterous disposition one with tbe other. This is sound law. In 2 Greenleaf, Sec. 41, the author says,. “Where tbe fact of adultery is alleged to have been committed within a limited period of time, it is not necessary that tbe evidence be limited to that time; but proofs of acts anterior-to tbe time alleged may be adduced, in explanation of other-acts of tbe like nature within that period.” Tbe learned author adds that “where the charge is of one act of adultery only, in a single count, to which evidence has been given, the prosecutor is not permitted afterwards to introduce evidence of other acts, committed at different times and places.” The cases cited support this view. State v. Bates, 10 Conn. 372; Commonwealth v. Horton, 2 Gray, 354; Commonwealth v. Thrasher, 11 Gray, 453. But in Thayer v. Thayer, 101 Mass. 111, the opposite view is taken, admitting evidence of' previous acts, and reversing the former Massachusetts cases. It was affirmed in Commonwealth v. Nichols, 114 Mass. 285. In State v. Witham, 72 Me. 535, the court say, “Latterly, however, courts and text writers are rapidly falling in with the view that acts prior and also subsequent to the act charged in the indictment, when indicating a continuousness of illicit intercourse, are admissible in evidence as showing the relation and mutual disposition of the parties; the reception of such evidence-to be largely controlled by the judge who tries the cause, and.
The exception to the verdict as being contrary to the evidence and the weight of evidence was not argued and was presumably abandoned.
We overrule the exceptions.