The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1881-11-30

Js.sf e. J. N-Cslig end Assffr J. J.-tptRien o.
~ Cont y Jril, CO
his is an action Of trespass for taking fruit
fron certain orange trees az Waimea. Oahu. tried
originally by he District Justice of hoolaaloa.
s.h NAY, 1881. who gavc Judgment FOR plaintiff Tor
81 daUsSes.
he case was appealed to the Intermediary
Court Of Oahu. which was held by Mr.. Justice
Judd May ss;h, and gave iudsrneat for the de-
PENDANT
Il was farther appealed 70 The Supreme Court.
and On the Isth Jaly Mr.. Justice Jucd rscsidi-;.
the case was presented % jury empaneilcd 70 Try
the caase. which rendered verdict Tor piain'in
with SiQo dAruaceS- The defendant moves Tor a
new trial on the ground that the Justice who PIE
sided AZ sid trial had previously giye1 judy
rueut IN the case and Mas therefore disqualified
TO preside At the trial before the jay.
ncfeudNEt's Counsel Ve!les on she latter p1rt o.
Sec. 50 u the Civil Code which reads: e Neither
shall any judge ST alone oa an appeal og new
tritl. in any casc in which be tray have given
previous Judgment = and alSo upon the lIig' Artl-
els OF the Constitution, - No Judge or naSistrAte
can sit alone on an appeal OF new trial in any case
On which be NAV have given a previous Judgment.
The objecs OF this article Of the Constitution
and the Section Of the Codc Is TO secure new trit-
unal for parties IN case they appeal ana II IS evil
dent that ihey would no, have such tribunal II
JuE-e who heard the case upon the law ard facts
shouid. ON tao appeal. IL another Court present
himself as alone constituting the appellate Coert
or On new trru beng granted, having once tricu
the case. he should assume 20 rctrN it alone.
The case before u had been tried before the In
tsrtueditry COUrt which : q single Justice Oi TIE
Supreme Court. ard the appeal brought the ease 10
b tried again On the facts uefure jury o. twetNe
men. under the direction % Justice Of the 81
preIns Court Who happened 70 be the Slue o. e
who sat IN Intermediary Court. II cannot be 81 d
that IN such cse ;ae Justice presiding sis alone.
The Jury ~ On the case and II determines q g
facts Of the c-.se. under the instructions Of the
Judge in relation 20 the law involved.
IL c1nuot vel be claiusd that a party who ap-
poGs generally on the facts of his Is entitled
10 saw IN the trigl court that the jury should he
presided over and The law to be applied laid down
bv Justice WHO has not given al opinion III the
loser court As the facts of the case For If the
appealing Fgrty j. 8ggrisved 10y the Judges ind
ms OF fact be Is to have new tril o. tie facts
by tha jury. ami II he Is ag-Tieyed by iae hndlHgs
OF law. he uiay appeal % the Supreme Court IN
Bgnc0. either directly ths law or through the
channel OF jury TRIAL and exceptions % the drec-
tilus of the judge. 50 far rs the policy Is con
cernsd of having different Judge SIT with q jury
on a cass appealed from the intermediary Court,
Il would not De decisive 70 obtain the opinion of
one judge on the law " case while sitting rs IL
terrediary Court. and then. an appeal % obtain
the opinion OF another judge while presiding over
tie Jury N the Suprgue Court. Inc more Sltls-
tgc.1ry c,lSe would be, II the Law - tlu down by
the IDtetued.ary Court was thought u be e,rUne-
Gus, 10 oppeal directly On the point to toe Supreme
CoCrt IN Banco.
lie above statutes are alsO INTENDED 20 prevent
the sitting of the same person alone Is circuit
Juc.-y on the appeal Of case from himself rs
Police or District judge. IL case he had been pro
NOTED % he Circuit Judge, while the appeal VAS
pending; 80 also. If q Circuit Judge had beeu
elevated 70 the Supreme bench. be goCld Dc u O.
qualified from sitting alone on cases which he had
previously tried.
Tie sJme Judge could not sit alone in July
waived cas- Ehich had been appealed from HIM
a Intermediary Court.
We are of opinion that the circumstances Of the
case before Us are not thos- contemplated and
forbidden by the Constitution and the statute
referred To
New tIial refused. A. FEANSuS IUDD.
LAWRENCE NcI'UIIY.
ReN-. h AUSTIN.
r. F. Bickerton for plaintiff; Castle 4 Hatch for
defendant.
Honolulu Nov 18th ISL