The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-11-09
QUESTION UP
To JUDGE DOLE
Are Confessions in Mormon
Churches Privileged Under
Our Laws.

squarely before Judge Dole in the Ke.
! kauoha case. It came up by reason
of a question asked by Judge Perry
of the witness Kekuku. 1t was argued
for nearly an hour pro and con and
was taken under advisement at 4
+ o'clock yesterday afternoon, 10 be de-
cided Monday morning, 20 which time
further hearing of the case was con-
tinued.
Some of the women who have given
quite pointed testimony as to the rela-
lions between George and Anna, the
! dramatfs personae of the episodes
| under investigation, occupied the wit
ness stand until about half past two
o'clock yesterday afternoon, when Ke-
kuku took the stand. Kekuku is a
Hawaiian in middle life, and deputy
tax assessor and collector for the dis
trict of Koolauloa.
Speaking through Interpreter Hop
kins, he said that he had known both
George and Amia for a very long time
He remembered meeting at the Nor
mon church at Laie in July of last
year at which the relations of George
and Anna had been discussed. George
and Anna We're both there. In addi-
ton there were four elders, or kahuna-
pule, and eight or nine kumu, or
teachers. Having got this far, J. j.
Dunno asked what was said about the
relations of George and Anna.
To this Judge Perry objected and in
sisted either that Dunno should further
question the witness as to the char
acter and capacity in which those there
were present, or should allow him at
that point to cross-examne the wit
ness on this point. Dunno said he
of questions intended to bring out the
distinction between the elders, or, as
the witness said they We're called
leaders, and the teachers; between the
kahunapule and the kumu. The OBJ
ject was to prove by the witness that
the elders, alone, the leaders or kahG-
napule had clerical functions and pow
ers, and that the kumu or teachers
did not; and hence that whatever was
said at that meeting was not COM
munication between a clergyman, or
clergymen, and penitents, and hence
under the statute a privileged commu-
nication, but was a communication in
the presence of clergymen and others, |
and hence could not be privileged !
under the statute.
The examination of Kekuku on this |
point was long drawn out. He seemed |
and we'll informed as to the |
rules and polity of his own church, |
but it did not seem easy to make clear |
to him the distinctions as between |
clerical and lay functions on which |
his testimony was sought. Dunno ask |
ed him if kumu could perform the |
ceremony, and he said no |
one could without a license from the |
Territory It was in vain that Dunno |
sought to find out from him whether
the church would authorize kumu,
teachers, to perform the marriage cere
mony even if they were licensed to, by
the Territory. Finally Col. Sam Par
ker, one of the jurors, helped out by
finding out who among the MormOns
were authorized to perform the mar
Rage ceremony and then finding that
hey were all leaders or elders, kahu-
lapule, and not teachers, or kumu, or
is the witness describing their duties
lad spoken of them, policemen"
In the end Dunno got from the wit
ness that though teachers or kumu
night be present at a church council
where -penitents were before them, yet
t was the elders alone who could
grant absolution. It was the elders
md not the teachers who could per-
orm baptism, administer the commu
lion, and take part in the laying on Of
lands.
On the basis of this testimony Dunno
claimed that he had a right to inquire
Is to what was said at that meeting
Is TO the relations between George
<ekauoha the defendant and Anna, as
lie claimed he had shown that what
.ver was said was not a confidence
between a clergyman and penitent, but
vas stated in the presence of others
han clergymen.
Judge Perry insisted, however, that
lie had the right to cross-examine the
witness on this matter and Judge Dole
ranted the permission. He sought to
how by the witness that though the |
eachers might not have all the min
sterial functions of elders they had |
ONE of them and were in fact clergy !
nen of the Mormon church. Finally
lie asked the witness if he and the
theirs did not consider that the pro- ]
ceilings of that meeting were conf
ential, a part Of their religious OBJ
ervances. and duties, and as such not !
G be disclosed elsewhere
To this question ]. J. Dunno OBJ
acted. He insisted that the proceed ].
lgs were privileged only if the statute I
made them so, and not because those
aking part in them thought they were.
On this objection the two sides
rgued for the remainder of the af-
ernoon. Dunno insisted that the evil :
ence had made it clear that at this
Meeting there were two classes of per-
ons present, clergymen and others. z
nd that it could not be contended that I /
he communications under these con-
itions were privileged any more than {
could be contended that a commune /
alton made by a client to his attor- 1
ey in the presence and hearing of /
everal others who were not lawyers
-as privileged; or that if a penitent | /
4 the Roman Church should make
to a priest in the presence
several others who were not priests. /