The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-10-17
OPINION OF THE COURT By JUDD. c. J.

OPINION or THE COURT By JUDD, c.
Both OF the above entitled cause
raise the question whether Section
of the Act to reorganize the Jndici
airy Department authorizes the jur-
to be waived In q crimioal case, Of
appeal TO the Circuit Court from
District Court, and allows the sam,
to be heard by the Circuit Court O.
by Judge thereof in vacation b,
agreement of parties.
In the first case the plaintiffs il
error were convicted and sentenced
an District Court of Kauai (Fiftl
Circuit) of the offense of carrying OF
n lottery on the 9th April, 1893, anC
appealed to the Circuit Court of the
Fifth Circuit, and waived trial by
jury, and by consent of the parties
the case was heard by the Circuit
Judge in vacation on the 21st July
the next regular term of the Circuit
Court not occurring till September
The Circuit Judge convicted and sen.
fenced the plaintiffs In error.
In the second case, the defendant
was convicted and sentenced on the
18th July, 1893, in the District Court
Of Honolulu, for the offense OF heed
less driving, and appealed to the
Circuit Court, First Court, in Cham
bers Jury waived) At the August
term Of the Circuit Court, the de
PENDANT offered, with the consent of
the prosecution, to waive trial by
jury, and moved the Court to hear
the cause without jury, and the
First Judge of the Circuit Court,
First Circuit, reserved the following
questions:
~ Can, under the existing laws.
an appeal be taken in criminal case
from the judgment of an inferior
court to the Circuit Court sitting
without a juryi
(2) Has the Circuit Court, sitting
without jury, jurisdiction to try
criminal cause on appeal from an in
ferior court, trial by jury having been
waived Ivy agreement, with consent Of
the Court?
Section 68 under consideration al
lows appeals from all decisions of
District Magistrates in all matters
civil and criminal to the Circuit
Court OF the same Circuit, whenever
the party appealing shall file notice of
his appeal within five days and shall |
pay the costs accrued within ten |
days" Thus far these provisions of |
filing notice and paying costs apply |
equally to all cases, civil or criminal. |
Then follows the provision, IF it is |
q civil cause" 800 bond for costs |
to accrue shall be filed. Thus far the |
civil case on appeal would 60 to the
Circuit Court, which means, without |
doubt, the Circuit Court of the same
circuit whence the appeal came, at
its next statutory term, and il nothing
more was expressed in the law, the
would be triable by the Circuit
&c presiding with jury. Then
J .ows the proviso Provided, how
ever, that If in his notice of appeal
he signifies his desire to waive jury
he shall only be required to deposit
rs surety for further costs a bond In
the sum OF twenty dollars, or money
20 the ,ame amount" This allows
he appellant to waive a jury, and if
he does so his bond for further costs
instead of being for 500 is to be for
only 500. The sentence ends here.
This clause allowing waiver of jury
does not refer to criminal case, for
Lu6 ClduSO ptcSCIlOCo q OOnu 4
Of 500 for further costs In civil
case which is to be tried by a jury,
and the next clause the waiver of
Jury, and In such case the bond is to
De but for $50. As no bond for costs
IS required In q criminal case, and as
he 500 bond is specifically for a
,ivil case with a jury it follows that
he $40 bond is for civil case with
,ut jury.
The next sentence of this section
yoes on to prescribe, "And in such
,ase" (meaning, as we think, in the
of the jury being waived
y the appellant), of it is a civil
ase, if the appellee desires jury
notwithstanding that the appellant ,
las wsivedt he may have one by :
moving for it and depositiDg bond ;
or costs in the sum of S100." 1t was
Unnecessary to insert the words In =
his paragraph 'if it be civil case" :
The context shows that all these pro-
isions apply to civil cases only: A :
urther matter is provided for which 1
lows, where the appellant valves
be jury and the appellee does not Z
lnve for it, the cause to be tried
-ithout a jury, that is, by the Circuit
Iourt in term, or by agreement OF 4
arties by the Circuit Judge in vaca- Z
on. This is also only applicable to ].
ivil cases. There are as We have o
zen three methods of disposing of I
civil case on appeal. {,
LIST. Trial by jury in the Cir n
nit Court, (a) when the sppel- +
mt does not waive the jury =
nd (b) when the appellee moves for s
In both of these instances the p
arty wishing the jury has to file a
1nd of 500 for costs. t
I'd. Trial without jury by the 81
curt in term, when the appellant
aives the jury and the appellee
pes not move for 1t.
Sd Trial by the Circuit Judge ~
ithout jury, neither party desir- ~
% the Jury, in vacation by agree bs
ent Of both appellant and appellee. lie