The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-02-07
OPINION OF THE COURT BIZ JUDD, CD.

OPINION OF THE COURT BIZ JUDD, CD
The above named defendants were
convicted Of the offense of adultery,
on appeal, by the jury at the last
November Term of the Circuit Court
First Circuit. The charge made in
the District Court was "Adultery In
Honolulu within one month prior to
October 18th, 1894"
The clerks minutes of the proceed
ings In the Circuit Court state the
charge to be "Adultery"-giving no
further particulars. Presumably the
same charge as made in the District
Court was renewed on appeal in
Circuit Court, but the minutes of
proceedings of the Circuit Court
should show it in full.
At the trial evidence was given of
the defendants living and associat-
ing together as man and wife,
though not married to each other,
prior to the arrest. IF the prosecu-
ton had rested here the jury would
have been authorized to find the YER
dict they did. But the prosecution
put on evidence, under objections by
defendants, of the circumstances in
which the defendants were when ar
rested on the 18th October, early at
z o'clock a. M, OF the next day after
the warrant was issued. These facts
went to the jury on the following
charge which was excepted to by
defendants counsel: at is immat-
erial In criminal prosecutions that
the date be exactly proved as laid; it
is sufficient if you find in this case
that this act (of adultery was com
mitted at or previous to the time of
the arrest" We regret being obIig-
ed to disturb the verdict in a case
like this where the proofs of guilt
are 80 clear,-but, under the in
struction, the jury might have found
defendants guilty Of the offense COM
mitted after the warrant was issued |
and at date subsequent to the time |
covered by the charge. Such evil
dence OF conduct occurring after the |
substantive charge of adultery Is !
only admissible as corroborative
facts, throwing light upon the pre-
vious nature of the intercourse be-
tween the parties and showing the
of an adulterous dis
position. The case from which we
derive this rule Of law applicable TO
cases OF this character is Thayer v.
mayer, 1Ol Mass. Ill. In this case
the Court commented upon previous
eases In the same Court, Com. v:
Horton, 2 Gray, 365;-Com. Y.
Ihrasher, IL Gray, $50; Com. v.
Merriam, IA Pick. 51S;-where prior
y subsequent acts Of improper fam
iiarity are rejected, as tending to {
now substantial act of adultery on
different occasion, and say that in
6ese cases "there is plain misap.
llcatlon OF the rules of evidence tn c
he facts presented 8
In admitting testimony to prove c
dultery on occasions subsequent to i
1e date OF the charge, the Court in b
mayer v. Thayer, say: Gan adulter-
rs disposition existing in two per s
ms towards each other is COMMONLY C
gradual development; it must t,
we some duration; and does not Il
subside. When once
own to exist, a strong inference II
ises that 1T has had and will have
ntlnuance, the duration and extent g
which may be usually measured Il
the power which it exercises over
conduct OF the parties. 1t is this IL
aracter or permanency which lust. -
the inference Of its existence. at
y particular point of time. from
;ts illustrating the preceding or
osequent relations of the parties. 7
10 rule Is, that a condition onca i
oved is presumed to have been RI
by causes operating in the -
la way end to have continuance mr.
the contrary be shown. H
me limit, practically, to the evil tn
ice under consideration is that it mi
81 De sufficiently significant in
4racter, and sufficiently near in as
nj or time, to have q tendency sto -
the guarded discretion of rea-
able and just man to a belief in
existence of this important
nent IN the fact to be proved. IF
remote or insignificant. il will be
cted, In the discretion of the
ye who tries the case. The fact NJ
the conduct relied on has occnr. -
since the filing of the libel does his
exclude 1T; and proof of the con- aga
q OF the same questionable req
tlons during the intervening mo
J, as IN the case at bar, will add anG
Is weight" - '''-" viii
the evidence of the circum-
ceo OF the parties at the time of +
aIIest ead gone to the jury upon
1 !, uction similar to the above If
Ia De unobjectionable. The avi~
% was admissible. for fbo ,,rooe
10 criminal act is the best proof
be adulterous disposition az 60 A
ed by the previous acts-bnt a. n
ge. as made, did not cover tbe
within which these acts occnr q
and the jury might not have n
d the adultery alleged to have ,,a -