The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1903-11-13
THE WOMAN
IN THE CASE
Tier Evidence Was
Not Improperly
Admitted.

The Supreme Court rendered q
unanimous opinion. written by Justice
Galbraith yesterday in the case of Ter
ritory of Hawaii vs.. Cheong kwai. 1t
is interesting in the story it contains
illustrative of the difficulties of dis
pensing justice to Orentals by Occi-
dental courts when the customs of the
Orient are involved. Judge De Bolt
tried the case in the Circuit Court and
the Supreme Court sustains his ruling
on which the appeal was taken Fol-
lowing is the syllabus of the decision:
LAW OF THE CASE.
An objection to the competency of a
witness offered by the Territory. in a
criminal prosecution, on the ground
that she was the wife of defendant.
being referred to the trial Judge for
decision as a question of fact" was,
after hearing testimony. Overruled.
Held, that the ruling being supported
by the evidence, afforded the defend
ant no ground of exception.
THE OFFENSE CHARGED.
The defendant was charged by in
dictment with assault with intent to
murder and on trial was found guilty
1t was proved that for more than a
year prior to June II, 1902. the prose-
living in rooming house in Vineyard
street with a Chinese woman as his
mistress; that this woman had former
ly been supported by and had lived
with the defendant: that defendant
claimed the woman was his wife and
that she denied a marriage with de-
PENDANT; that on the said June IL Fong
Quin returned to his rooms to take
the woman to the horse races; that
defendant was in one of the rooms
with the woman, but Immediately
ter, and in about fifteen minutes re-
turned with a revolver and without
speaking a word pointed it toward
Fong Quin and fired; that Fong Quin
ran out of the house, pursued by de-
PENDANT, who fired four or five times,
striking Fong Quin twice, but that
neither of the wounds proved fatal.
The defendant was the only witness
offered in behalf of the defense and no
attempt was made, other than by
cross examination of the witnesses for
the prosecution, to overcome or con-
tradict the testimony in support of
the charge.
The following extracts from the opin-
ion of the court will show the question
it decides, as we'll as give a glimpse
into Chinese social customs
QUESTION AT ISSUE.
During the presentation of the evil
dence for the Territory the Chinese
woman who was in the room when the
commenced was offered as a |
An objection was made to
her competency on the ground that she !
was the wife of the defendant, and, |
under our statute (Sec. 14l6 G.. L. an |
witness. ~ agreement !
Of counsel the jury was sent out and
the question of the competency of the
witness was submitted to the judge !
las question of fact" The excep-
tons relied on in this court were taken
during the trial of this question and
are: a. To the ruling of the Judge
finding that the woman was not the
wife of the defendant and was "A COM
petent witness; (2) To the ruling ad-
hitting certain testimony.
The burden was clearly on the de-
n a n n hot h., tkstt, ne,l
his wife. Apparently this burden was
assumed at the trial although it is
denied I'm his brief. An attempt was
made to prove a marriage at Hong
kong according to Chinese custom fol-
lowed by cohabitation there and in
Honolulu. Evidence at length was
given to show what was essential to
a marriage under custom in
China. The Judge found that there
was a failure to show a complained
with the essentials of marriage under
this custom and that marriage had
not been proved and that the witness'
was competent.
MARRIAGE AS CLAIMED.
The defendant testified to the mar
riage at Hongkong and another witt
ness swOre that he attended the mar
TldSt ne woman ttStlIltu
she had never been married to the de-
PENDANT and that the first time she
saw him was the day after she arrived
At Honolulu, about IL years ago, when
he was presented to her as her pro-
.ector by the steward of sailing ves-
sci in whose care she came to the ISL
inds; that the defendant paid this
steward $3.50 for bringing her and that
she then went TO live with the defend
ant and continued to live with him
Tor five years thereafter and as long
as he would support her; that when
the defendant refused her support she
look IN with another Chinaman and
lived with him Cor year and until
he returned to China when she be-
came intimate with Chinese actor
and after he deserted her she was TAX
IN up by Fong Quin and had lived
with him more than a year prior to
he shooting.
MARRIAGE NOT PROVED.
The evidence sustains the finding OF
The trial Judge that there was a fail
lre OF proof of a marriage between
The woman and the defendant accord
ing to Chinese custom.