The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1903-11-12
KWAI
NOT MARRIED
SUPREME COURT SUSTAINS HIS
CONVICTION-FAILED TO PROVE
CHINESE WEDDING.

The Supreme Court yesterday decid-
ed the case of the Territory against
Cheong Kwai, charged with assault
and battery, a case which aroused much
interest when tried in the circuit court.
The principal point contested in the
higher court was as to the admissibiity
of the testimony of a Chinese woman,
whom the defendant claimed was his
wife and therefore legally incompetent
to testify against him. Judge De
Bolt heard a lot of testimony as to the
nature of a Chinese marriage and final
ly held that a marriage had not been
proved. He allowed the woman to
testify and the Supreme Court, in a
unanimous opinion by Galbraith, sus-
tains his ruling, The decision says:
"The burden was clearly on the de-
PENDANT to prove that the witness was
his wife. Apparently this burden was
assumed at the trial although 1t is
denied in 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
constitute a marriage under custom in
China. The Judge found that there
d
with ~the essentials of marriage under
this custom and that a marriage had
not been proved and that the witness
was competent.
The defendant testified to the mar
riaGe at HOngkong and another wit
ness swore that he attended the mar
riage feast. The woman testified that
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 u years ago, when
he was presented to her as her pro-
tector by the steward of a sailing YES
sci in whose care she came to the ISL
ands; 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
for five years thereafter and as long
as he would support her; that when
the defendant refused her support she
took up with another Cinnamon and
lived with him for a year and until
he returned to China when she be-
came intimate with a Chinese actor
and after he deserted her she was TAX
en- UP by Fong Quin and had lived
with him more than a year prior to
the shooting.
The evidence sustains the finding of
the trial Judge that there was a fail
ure of proof of a marriage between
the woman and the. defendant accord
ing to Chinese custom.
The evidence would not warrant a
finding that there was a common law
marriage between the parties or sup
port presumption of marriage from
cohabitation and general reputation
recognized by some of the reported
cases. The witness under the evil
dence in the record was entirely too
promiscuous in cohabiting for this pre-
sumption to avail the defendant.
"It does not appear that the defend
ant was prejudiced by the other rul-
ings of the trial Judge excepted to
at the hearing of this question, for
instance, the defendant was asked on
cross-examination If he knew any
thing about a custom in China by
which a man gives to another man
money and receives in return a wo-
man. This question was objected to
as immaterial. The objection being
oVerruled the witness answered. l
don't know any such custom, The
evidence given by the expert produced
by the defendant showed that accord
Ing to Chinese custom a go-between
! was usually employed to find cut the
age of the girl and to arrange the de-
tails o. the marriage, one Of which
was the transfer of a sum of money
from the prospective bridegroom to
the Parents of the bride eject It is
said that the money was to be used
| in the purchase of a pig and wine
and cake for the marriage feast an
! essential element of every marriage
according to Chinese custom.
"The court seems to have given the
defendant rather wide latitude in his
attempt to prove the Chinese custom
of marriage and his compliance there
| with, We are convinced that the wit
| ness was competent and that there
was no error in receiving her testi-
| mony.
THE exceptions are overruled,"