The Hawaiian gazette., 1896-10-20
OPINION OF THE COURT BY JUDD. c. j.

The defendants were convicted the ofense of adultery
the last June of the Circuit Court Second Circuit
The adultery laid having been committed the 18th
of April last, at Pauwea Makawao, Maui The exceptions
taken first the admisby of evidence prove the
marriage of Ava Pun (w Puu She AVA being alleged
be married with whom sexual intercourse charged
with Wapa, she being his wife The prosecution offered
the record of the marriage in question as celebrated by one
Father Gusan, book kept by the Roman Catholic Church
Wauku Maui and from the custody OF the priest
in charge The parties married described residents of
Pauwea Maui This objected the ground that the
prosecution should first prove that the person who performed
the ceremony had lawful authority do that license to
marry had been duly issued exhibited delivered to the person
performing the ceremony that the person issuing the license
marry had authority grant the same, and that the parties
Ava and Pu be identified the parties named in the marriage
record The prosecution claimed that had evidence of the
marriage
The Court overrued the objection and the prosecution put
IN evidence marriage certificate by Father Gusan that Vic
Ava and Pun married by him In Makawao Maui,
the 9Th January 1891 The objections made
this evidence made to the former The Court admit
ted the evidence which excepted Later, the prose
cuon offered the license Pun and Victoria Ava marry
dated 9Th January 1891 given by Hao kawaimaka sign
ing himself Gan agent grant marriage licenses for the
District of Makawao, Maui and defendants counsel objected
the introduction of this license the ground that the said
Hao Kawamaka proven be authorized issue such
license and that his signature the license proven
The admission of this evidence is also made ground of
ception
The exceptions should be overuled As we have seen in
Republic of Hdrd q. Kuhia and NuOlO (ante, p y
charge of adultery marriage be proved by direct evidence
The record and the certificate of in evidence required
be made by the statute then in force Compiled Laws
1914 Upon this Bishop Marriage d Divorce Vol
Sec 461 says Where the law public officer with
the making and preserving of record of public and
interest the presumption that he does his duty therefore,
and perhaps for further Also the record is ev
dence of the fact The book itself may be presented the
COURT certificate of the required record, made by the
officer charged with its keeping will be received instead
This statement of the law that certificate of marriage
: II, l.
accordance with the practice of The certificate
OF the priest the second paper oduce must remember
not certificate of the marriage record but declaration
of authorized person that he had soemnzed the marriage
The admissibity of such certificate under OATH
companied by proofs its delivery the time the parties
is in many Jurisdictions deemed nadmissible See Bishop,
Mar Div Sec 473a. Having found that the certificate
OF the marriage record admissible it is not necessary
pass upon the admsby of certificate of the bare fact of
/ marriage having been performed
On the point that the prosecution prove that license
marry be proven hold that this necessary.
When the law upon official person duty connected
with his Office, and the time for Its performance tranpes,
the primd facie presumption is that is done" Bishop
Mar & Div Sec $50 The presumption holds good until the
contrary shown 1t therefore necessary produce
the license marry prove that the agent who granted
it had the requisite authority
The further objection that there proof the identity
of the parties Pun and AVA who are mentioned in the mar
rage record There evidence set up that the parties
lived together at Pauwela, Maui and wife, for
years after the date of the alleged marriage also that the hs
pand Fuu Went with the ocers who found the wife
pcous relations with Waipa This the jury under
proper instruction proof of the identity of the parties and
the jury were justified in finding sufficient The Ava of
Pauwela married to Pun lived Pauwea with Puu her
husband and the Pun of Puwe pursued the defendant Wapa
the adulterer of Ava his wife.
Defendants also except the introduction of proof of an
of illicit intercourse prior that laid in the charge to
wit, the Sth March This evidence was admitted and
the Court instructed the jury that they could convict the
defendants of adultery the 9Th March, but if they
believed the testimony, they might take into consideration
bearing upon their relations another to their