The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-04-10
OPINION OF THE COURT BY JUDD, ].

OPINION OF THE COURT BY JUDD, c j.
The defendant was tried and con-
victed In the District Court of Lihue,
Kauai, on the 18th of last January,
of the offense of gaming.
During the trial the attorney for
the defendant proposed to ask the
prosecuting witness on crOss-exami-
alton, whether he had been convicted
of any offense. On objection, the
District Judge refused to allow the
question to be asked. After convict
ion and sentence the defendant ap-
pealed to this Court on the point of
law, ''that the defendants attorney
was not allowed to discredit the evi
prosecution by asking him whether
he had been convicted of any
offense."
Tt was clearly erroneous for the
District Magistrate to refuse to al
low this question to be asked, for the
law, (Sec. 81 Of the law of evidence
p. 377 Comp. Laws) prescribes that
ga witness may be questioned as to
whether he has been convicted of
any indictable or any offeDse."
The latter part of Sec. 6S, Judici-
airy Act of 1893, provides that an ap
peal solely upon points of law from
a decision of District Magistrate
may be had to the Supreme Court
to be 30 stated In the notice of appeal.
Counsel for defendant claims that
his appeal is in order, being on
point of law the decision being in
violation of a statutory right, and
that it entities the defendant to be
discharged. Counsel for the prosec
ution claims that to order a new
trial is the most that can be done for
the defendant.
The Judgment was that the de-
PENDANT was found guilty and sen
fenced to pay fine of ten dollars
and three dollars costs. The sentence
was legal and far within the
maximum fine authorized by statute.
(Act 81 of the Prov. Govt. Sec. 10)
It is contended by defendants
counsel that the sentence was illegal
because certain evidence which
ought to have been admitted was not
admitted, aud the excluded evidence
might, if admitted, have changed the
conclusions of the magistrate. We
are unable to agree with the con
tention of either the counsel for
prosecution or for the defendant.
The defendant is not entitled to
a discharge on account of this error,
since the sentence imposed was legal,
the Judgment which found the de
PENDANT guilty being the only one
which the Magistrate could have
made upon the evidence adduced,
and the sentence being one author
lied by the statute If the sentence
was illegal, following Rex. v. Tai
Wa, Haw. 598, we would only have
the authority to discharge the de-
PENDANT because we would not have
the power to substitute legal SEN
tence for one that was Illegal, nor
send the case back to the District
Court in ordsr that it might dc so.
The appeal on the point of law in
this case is not, in fact, from the
decision of the District Court
(which, as we have found, is a legal
one,) but from ruling made in the
progress of the trial, refusing to
admit certain evidence.
This Is not an appeal such as Is
contemplated or allowed by our
statutes, and is quite novel to us.
The defendants remedy would be by
a general appeal to the Circuit Court
where the excluded evidence would
presumably be admitted, aud if not
admitted, then exceptions therefor
would lie to this Court II new
trial should be ordered, defendant
would go back to the same magis
trate, who would admit the previous
ly excluded testimony and yet be
free on the whole evidence tc come
to the same conclusion. It would
be different if a new trial was order
ed on this ground in Circuit Court,
for then the jury, who are judges OF
the facts and the credibility of the
witnesses, would be new and differ
emit one.
Counsel for defendant argues that
inasmuch as Sec. 70 of the Judiciary
Act gives express authority to the
Supreme Court In case of an appeal
from decision, Judgment, order or
decree of Circuit Judge at Cham
bers, to review, reverse, affirm,
amend, modify, or remand for
new hearing &c, and as such
power is not expressly given
byany section of this Act in
cases of appeals on points of law
from District Courts, therefore such
power does not exist, aud on account
OF this error of the District Court
the defendant should be discharged
as no other course can be followed
The conclusion we have come to