Kane v. Nakaleka , 7 Haw. 211 ( 1888 )

Opinion of the Court, by

Preston, J.

This is an action for Criminal Conversation and was tried at the last October Term, before Mr. Justice Bickerton and a Hawaiian Jury, when a verdict was returned for the plaintiff with $112.50 damages.

The complaint alleges the adultery to have been committed in or about the month of January, 1886, and a second count alleges that the defendant on the 2d day of March, 1886, enticed the plaintiff’s wife from her home and that “ he has ever since detained and harbored her and lived in adultery with her.”

The complaint was filed on the 15th July, 1887.

The plaintiff called one Kiakahe, who proved an act of adultery between the defendant and the plaintiff’s wife on the 26th day of April, 1886.

The defendant objected to the admission of this evidence on the ground that it was not admissible under the pleadings.

The Court overruled the objection and Counsel for the defendant excepted, but abandoned the exception at the argument before us.

Counsel for the defendant moved the Court' to grant him a continuance for one week, to enable him to procure witnesses by whom the defendant could disprove the said specific act, on the ground that said witnesses all resided on the Island of Molokai, that defendant had been prosecuted for said alleged act of adultery and after a trial on the merits discharged; and the plaintiff not having alleged said specific act in his complaint, the defendant could not be prepared to contradict the attempted proof thereof.

The Court overruled the motion and the defendant duly excepted.

By the Court.

We are of opinion that the presiding Judge was right in overruling the motion.

The complaint alleges continued adultery from the 2d March, 1886, to the commencement of the suit, and it seems to us impossible that the defendant could have been taken by surprise by the evidence.

The acquittal of the defendant in the District Justice’s Court was not conclusive against the plaintiff in this action, and the defendant should have been prepared with evidence to rebut the charge.

W. O. Smith, for plaintiff. P. Neumann, for defendant.

He ought to have anticipated the course the plaintiff would naturally take, which was clearly open to him.

The exceptions must be overruled, and in doing so we do not wish it to be understood that we consider the exceptions were properly taken to a matter purely within the discretion of the presiding Justice.