The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1869-09-08
Supreme Court, Hawaiian
Islands, IS.
July Term, A. ID. 1889.
The King Is. Henry COrnloeA.


dered a verdict of guilty. The defendants
exceptions are set forth in the opinion Of the
Court.
HARTwELL, j.; We will first consider
whether the Circuit Court properly declined
10 entertain the defendants motion for new
trial. This question arises now for the first
time, although the jurisdiction seems to have
been conceded by the practice CT the Circuit
Courts in hearing, and uniformly oTerruling,
such motions, on which the Appellate Court
finally passes.
The English and American rules differ in
regard to new trials. 1t is The rule in Eng
land, never to grant new trial, on the merits,
in cases of felony, and that in no case has an
inferior Court this power, unless for irregu-
larities. The remedy was by appeal TO ex-
ecutive clemency. THE King VS.. Mawbrey,
Term, 63S; Same VS.. Oxford, l6 East, AL I;
Blacquire VS.. Hawkins, Doug, $50; Rex We.
Peters, Bur, 572; Rex VS.. Whitehouse, Is
E. L. 6 E., los. 1t is generally held, in the
United States, that the Courts have the right
to grant new trials in any case, civil or Grim
inal, by virtue either of express statutes,
general jurisdiction, or Constitutional law.
r. Bennett & Heard's Lead. Cr Cas-, 464l
The Constitution of this Kingdom pro-
vides that no person shall be subject to
punishment for any offense, except on due
and legal conviction thereof, in Court hay
ing Jurisdiction of the case;" Art. g. This
Court has, under the Statutes, the general
superintendent of all Courts of inferior ju-
risdiction, to prevent and correct errors and
abuses therein, where no other remedy is ex-
pressly provided by law" See. $50 Civ. Code
Sec. 1156, 10, provides for motions for new
trials, without restrictions as TO the Court in
which they may be heard; but reference to
only are thus provided for. By See. lls4, To-:
"ln all criminal cases, where the punishment
is less than capital, the Court before whom
the conviction is had shall proceed, as soon
thereafter as may be, to pass sentence" This
Section is to be construed with Sec. 1177, I6.,
which allows sentences to be respited, on the
granting of motions in arrest ofjudgment, and
stay of execution for cause. This Court has
never hesitated to grant new trials whenever
it appeared that the accused did not have-a
fair and legal trial, according to the laws of
the land. But this right in criminal cases is
not expressly granted to the Circuit Courts,
although their Jurisdiction is precisely and
fully defined in the Statutes. 1t was argued
that the Circuit Courts have general and un-
limited jurisdiction in cases cognizable before
them, and that this power is TO be regarded
as inherent in their general powers, and as
essential to the furtherance of justice. But
as a new trial can be obtained in this Court,
it is unnecessary that the Circuit Court
should assume power not granted. There
are reasons why this power, in criminal cases,
is confined to the Supreme Court. The rule
TO the side on which the evidence pre-
ponderates, but in criminal cases, the evil
dence should present and admit no reason
able explanation of the offense other than
cases, the appellate court can easily deter
mine whether the evidence supports the ver-
dict. No exception, it is held, lies in favor
of the prosecution. The public, then, in con-
sequence of this want of mutuality, are the
more interested that verdicts be set aside
only upon well-ascertained and uniform prin-
ciples of law, and after nsature deliberation.
Neither Court nor counsel, at the circuit
can refer largely to legal authorities, and
the public interests would suffer by a va
riety of rules and hastily formed decisions
in granting new trials. Nor can the accused
suffer in bringing his exceptions here, after
any temporary excitement against him has
had time to subside, and after his counsel
have had time to prepare their briefs. The
Courts, in their rulings at the trial, will be
none the less cautious TO avoid errors, from
the knowledge that they can not order
second trial.
Under Sec. $50, Civ. Code, as always
construed, the defendant may bring to
this Court his exceptions to all the rulings
of the Circuit Court, whether upon points
made during the trial, or subsequently, in
cluding refusals to arrest judgment for error
apparent on the record, or to stay execution
for cause. In deciding upon the excep-
tions, the Court may pass senteDce, remand
for sentence or execution, or for new trial,
or acquit TCom. VS.. Peck, Met, 1881 The
ruling of the Circuit Court, declining juris-
diction, is accordingly affirmed.
When the evidence for the prosecution was
closed, the defendants counsel moved the
Court to instruct the jury to acquit, on the
grounds, 1. That the allegation in the COM
plaint is not sustained by proof 2. That
there is no proof of dedication of the road
in question. 3. Because the only fence that
defendant erected was the wire fence on the
Nowline land, which be had right to erect.
4 Because the distinctions in the road are
maintained under an Injunction from the
Chancellor of the Kingdom.
1t is impossible for this Court to decide
whether there was legal evidence to show
q dedication Of the land for public road. as
the Bill reeites only that portion Of the evil
dence referring to the ownership of the land,
the location Of the road, and to the injune-
ton By the evidence reported, it seems
that several witnesses, when asked to name
all the landowners, did not name Nowline,
but that a native witness said that the road
went son to" Nowline's land, and some
discussion arising as to what this witness
actually said in Hawaiian, the Court left it
to the jury; and that Mr.. Alexander testified
that the land, 81 where it enters the Wailuku