The King v. Cornwell

• Decision Date: 08 September 1869
• Citation: The King v. Cornwell, 3 Haw. 154 (Haw. 1869)
• Parties: THE KING v. HENRY CORNWELL.
• Court: Hawaii Supreme Court

3 Haw. 154

THE KING v. HENRY CORNWELL.

Supreme Court of Kingdom of Hawai'i.

September 8, 1869

July Term, 1869.

Syllabus by the Court

CIRCUIT courts cannot grant NEW TRIALS in CRIMINAL CASES, but the SUPREME COURT can.

VERDICT will not be set aside for CONFLICTING EVIDENCE.

At a trial for a NUISANCE an EX-PARTE order for an INJUNCTION against its removal is no evidence to justify it, but the fact that the defendant obtained such order is conclusive evidence that he was then maintaining the nuisance.

INSTRUCTIONS need be given in the form requested, if as given they correctly state the law.

PUBLIC DEDICATION of way may be inferred by PUBLIC USER unopposed and acquiesced in for twenty years.

NON-USER is a fact tending to rebut a PRESUMPTION of dedication by user.

After a long lapse of time, the Court will presume that the authorities in laying out a highway, complied with all the legal requisites if the principal requisites are shown to have been complied with, and there is no evidence to rebut such presumption.

In a GENERAL VERDICT of guilty, the LOWEST DEGREE of the offence will be PRESUMED.

If no PANEL be legally summoned, a tales cannot be ordered under Section 1199, Civil Code.

R. H Stanley and W. C. Jones, for defendant.

S. H Phillips, Attorney General, for the Crown.

Allen Ch. J., Hartwell and Widemann, J. J.

HARTWELL J.:

Complaint under Chapter 37, Penal Code, for levying a common nuisance by obstructing a certain public highway upon the Island of Maui, by erecting or maintaining fences across the said highway.

At the trial before the Circuit Court at Lahaina, at the last June Term, the jury rendered a verdict of guilty. The defendant's exceptions are set forth in the opinion of the Court.

We will first consider whether the Circuit Court properly declined to entertain the defendant's motion for a new trial. This question arises now for the first time, although the jurisdiction seems to have been conceded by the practice of the Circuit Courts in hearing, and uniformly overruling, such motions, on which the Appellate Court finally passes.

The English and American rules differ in regard to new trials. It is the rule in England, never to grant a new trial, on the merits, in cases of felony, and that in no case has an inferior Court this power, unless for irregularities. The remedy was by appeal to executive clemency. [The King vs Mawbrey, 6 Term, 638; Same vs. Oxford, 16 East., 411; Blacquire vs. Hawkins, Doug., 380; Rex vs. Peters, 1 Bur., 572; Rex vs. Whitehouse, 18 E. L. & E., 105.] It is generally held, in the United States, that the Courts have the right to grant new trials in any case, civil or criminal, by virtue either of express statutes, general jurisdiction, or Constitutional law. [2 Bennett & Heard's Lead. Cr. Cas., 464.]

The Constitution of this Kingdom provides that " no person shall be subject to punishment for any offense, except on due and legal conviction thereof, in a Court having jurisdiction of the case; " Art. 6. This Court has, under the Statutes, " the general superintendence of all Courts of inferior jurisdiction, to prevent and correct errors and abuses therein, where no other remedy is expressly provided by law." Section 830, Civil Code. Section 1156, Ib., provides for motions for new trials, without restrictions as to the Court in which they may be heard; but reference to the previous section shows that civil cases only are thus provided for. By Section 1184, Ib.: " In all criminal cases, where the punishment is less than capital, the Court before whom the conviction is had shall proceed, as soon thereafter as may be, to pass sentence." This section is to be construed with Section 1177, Ib., which allows sentences to be respited, on the granting of motions in arrest of judgment, and stay of execution for cause. This Court has never hesitated to grant new trials whenever it appeared that the accused did not have a fair and legal trial, according to the laws of the land. But this right in criminal cases is not expressly granted to the Circuit Courts, although their jurisdiction is precisely and fully defined in the Statutes. It was argued that the Circuit Courts have general and unlimited jurisdiction in cases cognizable before them, and that this power is to be regarded as inherent in their general powers, and as essential to the furtherance of justice. But as a new trial can be obtained in this Court, it is unnecessary that the Circuit Court should assume a power not granted. There are reasons why this power, in criminal cases, is confined to the Supreme Court. The rule in civil cases requires that a verdict be given to the side on which the evidence preponderates, but in criminal cases, the evidence should present and admit no reasonable explanation of the offense other than the prisoner's guilt; in the latter class of cases, the appellate court can easily determine whether the evidence supports the verdict. No exception, it is held, lies in favor of the prosecution. The public, then, in consequence of this want of mutuality, are the more interested that verdicts be set aside only upon well-ascertained and uniform principles of law, and after mature deliberation. Neither Court nor counsel, at the circuit can refer largely to legal authorities, and the public interests would suffer by a variety of rules and hastily formed decisions in granting new trials. Nor can the accused suffer in bringing his exceptions here, after any temporary excitement against him has had time to subside, and after his counsel have had time to prepare their briefs. The Courts, in their rulings at the trial, will be none the less cautious to avoid errors, from the knowledge that they can not order a second trial.

Under Section 836, Civil Code, as always construed, the defendant may bring to this Court his exceptions to all the rulings of the Circuit Court, whether upon points made during the trial, or subsequently, including refusals to arrest judgment for error apparent on the record, or to stay execution for cause. In deciding upon the exceptions, the Court may pass sentence, remand for sentence or execution, or for new trial, or acquit. [Com. vs. Peck, 1 Met., 428.] The ruling of the Circuit Court, declining jurisdiction, is accordingly affirmed.

When the evidence for the prosecution was closed, the defendant's counsel moved the Court to instruct the jury to acquit, on the grounds, 1. That the allegation in the complaint is not sustained by proof. 2. That there is no proof of a dedication of the road in question. 3. Because the only fence that defendant erected was the wire fence on the Nowline land, which he had a right to erect. 4. Because the obstructions in the road are maintained under an injunction from the Chancellor of the Kingdom.

It is impossible for this Court to decide whether there was legal evidence to show a dedication of the land for a public road, as the Bill recites only that portion of the evidence referring to the ownership of the land, the location of the road, and to the injunction. By the evidence reported, it seems that several witnesses, when asked to name all the land owners, did not name Nowline, but that a native witness said that the road went " onto" Nowline's land, and some discussion arising as to what this witness actually said in Hawaiian, the Court left it to the jury; and that Mr. Alexander testified that the land, " where it enters the Wailuku road, belonged to Nowline, and is now owned by Mr. Cornwell." We think, on this evidence, and under the instructions, hereafter to be referred to, this matter was properly left to the jury.

The order of injunction referred to in the instructions prayed for, was issued March 23, 1866, by the Chancellor of the Kingdom, enjoining Thomas W. Everett and his agents, etc., from interfering in any manner with the fences now claimed by the prosecution to be an illegal obstruction to the highway, and referred to in the said order as the defendant's property. The restraining order, citing said Everett to show cause why the injunction should not be made perpetual, was read at the trial. The defendant's sworn bill for this injunction was attached, and the fact that it was attached was in evidence, but the bill was not read to the jury. This order, obtained as such orders usually are, upon an ex parte hearing, was no justification of the defendant's own action in regard to the fences, and was no authority for him to continue to maintain them as a nuisance. No such mode of legalizing a nuisance was ever heard of, or can for a moment be admitted.

When the testimony was all in, the defendant's counsel requested the Court to give to the jury the following instructions, which were given, but with the modifications as set forth:

1. " That unless they find upon the evidence that the road in question was legally laid out and opened, and the land over which it runs was dedicated by the owners, Manu, Humphreys, Crowningburg, and Nowline, for the use of the public, they will find the defendant not guilty; " modified by the Court, " with the laws as laid down in Greenleaf on Ev., upon presumptions of fact as to regularity of proceedings, " & c.

2. " That unless they find from the evidence, that the owners of the land over which the road runs, dedicated, by some clear and manifest act, without the intention of reclaiming it, they will find the defendant not guilty; " modified by the Court, " but knowledge of, or acquiescence in public user, if continued for a sufficiently long time, would be evidence to show such intention to dedicate."

3. " That unless they believe from the evidence, that Nowline consented to the road running over his land, then as Cornwell had the right to place the wire fence on said land which he...