The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1888-07-31
PAA AND MAKAHIKI vs.. GEORGE E.
RICHARDSON, CIRCUIT JUDGE OF THE
SECOND JUDICIAL CIRcUIT.

RICHARDSON. CIRCUIT JUDGE OF THE
SECOND JUDICIAL CIRCUIT
JUDD, CD. M'CULLY, PRESTON, BICKERToN
AND DOLE, u.
Opinion Of the Court per Judd, C. j.
This is a petition for a writ OF
mandamus to direct the Circuit
Judge of the Second Judicial Cir
cult to allow and certify an appeal
to the Circuit Court of said Circuit.
The agreed facts are as follows
The petitioners were arrested and
convicted of the offense of larceny of
animals before the District Court of
Makawao, Maui, from which judg-
ment and conviction they appealed
to Judge Richardson, the Circuit
Judge for the Second Judicial Cir
cult, at Chambers, who, on the 9th
day of March, 1888, tried and found
them guilty, and sentenced them for
said offense. That within the time
required by the law regulating APP
peals, the accrued costs were paid,
and costs for further appeal upon
the facts to the Circuit Court of the
Second Judicial Circuit, were ten
dered to the said Judge Richardson.
That the said Judge refused to
allow said appeal upon the facts to
the Circuit Court of the Second Ju-
dicial Circuit, upon the ground that
Chapter LXII. of the Session Laws
of 1856 forbids it.
The Act reads as follows:
"Section l. From and after the
passing of this Act any person de-
sirous of appealing from the decision
of any Police or District Justice in
any case, whether civil or criminal,
may, upon giving the notices and
paying the costs, and giving the
bonds now required by law, appeal
from any such decision to any Cir
cult Judge at Chambers or, if on
the Island of Oahu, to one of the
Justices of the Supreme Court in
Chambers, or to the Circuit Court of
the same Judicial District, or if on
the Island of Oahu, to the Supreme
Court, at the election of the party
appealing, to be stated at the time
the appeal is taken, and no further
or other appeal on any question of
fact shall be allowed. In appeals
where no bond is now required by
law, none shall be required here
under"
The plaintiffs claims that this law
allowing no further appeal to jury
on questions of fact from a Circuit
Judge at Chambers is unoonstitu
tional.
Article Z of the Constitution pre-
scribes that SIN all cases an Which the
right Of trial by jury has been heretofore
used, ii shall be held inUiola6Ie for ever,
except in actions of debt or assump-
sit in which the amount claimed is
less than fifty dollars"
". a. Kinney for petitioners.
The Government claims that the
law in question is no violation of the
constitutional right of trial by jury,
because plaintiffs by the act Of APP
pealing to the Circuit Judge elected
such Court rather than the Circuit
Court, or waived their constitutional
right of trial by jury.
Election or waiver is a question of
fact, i.e., did the man, as matter of
fact, choose between the two Courts?
or in other words, did he waive as a
matter of fact his trial by jury? Ger
tainiy there is no proof of this, other
than the mere fact of the appeal to
the Circuit Judge.
The law in question undoubtedly
to make this act of appeal
ing to the Circuit Judge, in itself
and considered alone, raise by law
conclusive presumption of fact
This we say materially impairs the
right Of trial by jury. An actual in
dividual waiver of the right is one
thing, and this presumption of waiver
is another. No one can waive right
of trial by jury but the man himself,
and / submit that the law cannot set
cut ad Itbitum what acts shall consti-
tute waiver on the part of the indi
vidual.
There is a limit, and this law we
submit has gone beyond it.
a. p. Peterson, Deputy Attorney
General, in reply, cited:
81 Am. Rep. 81
q Wend. Rep. $40.
81 Iowa Rep. SIS.
5 Ohio Rep. $50.
46 Conn. Rep. 949
By TEE CoURT-We are of opinion