The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1888-08-06
Judicial Decisions.

A decision of the Supreme Court in
banco by Justice Bickerton, ccncurred
in by Chief Justice Judd and Justices
McCully and Preston, was filed in the
| Clerks office on Saturday, in the case of
the King VS.. Lum Hung. Defendant
was convicted in the Police Court and
| sentenced to pay fine of $500 and to be
imprisoned without hard labor for three
days and to pay costs, for " violating
Sec. of Chap. Al, Session Laws of 1886,
| by having unlawful possession of tools,
| devices, implements or tickets to play
pakapio, a banking game, in Honolulu,
this being Lum lungs second offense. -
The defendant appealed to the Supreme
Court and at the April term, 1888, was
found guilty and sentenced to hard labor
two months and fined $500, when the
case was appealed to the full Court on
exceptions to the verdict, to the refusal
of the Court to charge the jury as re-
quested by defendant, and the denial of
a motion that the jury be directed to re-
turn verdict OF acquittal The Court in
bancO Sustains the conviction and over
rules the exceptions, saying that Obiec-
ton might have been taken to the
accusation on the ground that it was not
sufficiently specific, but it did not APP
pear that such objection had been
brought by counsel.
Justice Dole cOncurs with the decision
with the exception of the conclusion
stated in certain passage, saying he is |
not prepared to adopt this view nor does |
he think it essential to the decision |
OF the issue submitted to this Court. !
The conclusion dissented from is as |
follows:
We are of opinion that if the charge |
IN the Supreme Court had been IN the |
same terms as that made in the Police |
Court, the exceptions would have been |
we'll taken and they would have had to
be sustained and the defendant dis
charged, because there was no evidence
to show that papakio was a banking
game" A. 2. Peterson for the Crown;
w. X. Castle for the defendant.
On Saturday also was filed banco
decision by Justice Preston, con-
CURED in by Chief Justice Judd
and Justices McCully and Bickerton, on
the motion for new trial on behalf of
j. IL. Reeves. Defendant was convicted
at the term of the Third Judicial Circuit
Court at HilO in May last for cattle
stealing. Application was made to the
SA1OO1C OOuIG 1OT new TRIAL on the |
grounds that the verdict was against
the law and the evidence and of sur
prise. This motion was refused on the
ground that the Circuit Court could not
grant q new trial in a criminal case.
Exceptions to this ruling were argued at
the late July term and ovtrruled. Mr..
Hartwell then moved for new trial on
the grounds aforementioned and also
on the ground of newly discovered evil
dence. Mr.. Peterson, Deputy Attorney
General, took preliminary objection to
the motion, that it was too late. The
Court by this decision dis misses the
motion for new trial, in brief, because
exceptions were not taken before and
certified by the Judge presiding at the
trial, and because rule of the Court
directs that application for a new trial
should be fled with the Clerk of the
supreme Court. within ten days of the 6
trial.
Justice Dole dissents from this deci-
son, saying there is no statute or rule of S
court that limits the Supreme Court in ,
oanco to the ten day rule in motions for
new trials from the Circuit Courts In
cases. He cites a Hawaiian
1eclslon where it was held that the ten
lay rule Is subject to the control and
discretion of the Court, and may be
waived to prevent an injustice That =
0elng civil case so decided upon, the
dissenting Justice holds that the argu-
nent in this, a criminal case, is much
stronger for the exercise of a liberal
discretion.