The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-02-25
DISSENTING OPINION OF DOLE, J.

DISSENTING OPINION OF DOLE, j.
The opinion Of the trial justice
which is adopted as the opinion of
the Court, is based chiefly on the
hearsay evidence of the father of the
plaintiff, who, according to the testi-
mony Of Kakina, the officer granting
marriage licenses, and his clerk, re
ported her as fifteen years old in
1883, when he procured her marriage
license, and, according to the parents
of the respondent, represented her as
fourteen years old at the time the
marriage was negotiated.
1t appears, on the other hand,
from the evidence, that the parents
of the plaintiff nov testify that she
was born June Oath, 1876. James
Kapio, her elder brother, says that
his parents told him that she was
born in 1876; Lokia, who says he is
an intimate acquaintance of the
family, testifies that the plaintiff was
born in June, 1876, that he lived III
the same house at the time and made
a memorandum of the event, and
helped to take care of her. j. Loka,
District Judge of Hawaiian, testified
that he was married to plaintiffs
aunt, and thinks the plaintiff was
born June Goth, 1876, that she was
born at his place and he tried to de
lay the marriage because he knew
she was not old enough.
The Court below further argues
from the testimony of Laumaewa,
witness for the plaintiff, and Pail
witness for the defendant, that the
plaintiff was born in 1875.
The substance of Laumaewa's tes-
timony on this point is as follows:
I saw her in 1876 on Kauai; she
was very small-a mere babe in
arms. Don't know if she could
crawl. Wana my brother was elected
to the Legislature that year. He had
been gone to the legislature two OF
three months when [ first saw petit
toner. l cannot say how old she
was, perhaps three or four or five
months, but [ cannot say; it is a con
| lecture of mine merely.
AS the legislature met that yeal
late in the month of April, it may
we'll have been after June when be
saw the baby, as it was two or three
months after his brother went to the
legislature. As to his admissions
that she may have been three or -four
or five months old, they are valueles:
as he said they were merely coDjec
lures. So this evidence of Lauma
eva by the reasonable and almost
necessary construction, agrees will
and supports that of her parents a:
to the birth of the plaintiff in June
1876.
The following is the substance o
Pali's testimony on this point:
/ knew Nowlein and Lahels hi
wife at Hanalei from 1868 to 1875
I knew or saw daughter of theirs
but didn't know her name; I knew O
saw three children, and only knew
the name of the eldest, which wa!
Makainui; | don't know the month
or the year when Polly was born, O
how old or how large she was, o
whether she could walk when / CAM
away in 1875; she was born Ion,
after my arrival there in 1868; wa
a clergyman at Hanalei when tn
children were born, and it is only
conjecture of mine (mandO a0ale ho'lI
that Polly was one of them.
This is the evidence that led tn
, trial justice to the belief that Poll
J must have been born early in 1876
before the month of March. NJ
mind IS not led to that conclusion
which is not supported by any othe
evidence in the case except the re
| ported statements of the father a
the time of the marriage. Tn
1 most favorable construction t
3 Laumaewa's evidence could not pu
Polly's birth earlier than the las
? month of 1876. Kuula, another vii
: ness, says he was in Hanalei in Nc
. vember or December, 1877, when b
, saw Nowlein's children, one of whor
/ he believes was the plaintiff sh
was very small, and was beginning t
3 walk-could walk, but was not stead
4 on her feet.
: This is not very definite evidence
= but it corresponds with the theor
3 that the plaintiff was born in June
3 1876, which would make her l
J, months old, rather than befor
$ March, 1876, which would make he
/ two years and nine months old G
: more when Kuula saw her, whic
n may be regarded as a rather aC
Q vanced age for child to be learnin
q to walk.
t 1t appears by the evidence of til
! plaintiffs father and of j. Loka, thu
g James Kapio, her next elder brothe
s was born September 9Th, 1874. Thi
/ is not disputed, and makes til