
    REPUBLIC OF HAWAII v. KAHAKAUILA AND KILIKINA HAKE (w).
    Exceptions from Circuit Court, First Circuit.
    Submitted June 25, 1895.
    Decided June 26, 1895.
    Judd, C.J., Frear, J., and Circuit Judge Whiting, in Place oe Bickerton, J., Absent prom Illness.
    (1) In a criminal cliarge of adultery against a wife, her husband is not a competent witness to prove their marriage. Compiled Laws, p. 376.
    (2) When evidence to prove a fact on the part of the prosecution is improperly admitted and thereafter the fact is confessed to be true by the defendant in her testimony, it is no ground for a new trial.
    (3) There being abundant evidence to sustain the charge of adultery, though denied by defendants, the Court refused to disturb the verdict of guilty and grant a new trial.
   OPINION OP THE COURT BY

JUDD, C.J.

On tlie trial of this case at the last term of the Circuit Court, First Circuit, the charge being adultery, the prosecution called Hake (Japanese) as a witness, he being the husband of Kilikina (w), one of the persons charged, and, under objection by the defendants’ counsel, testified that Kilikina was his wife and that they were married -by Father Damon and identified the marriage certificate. The charge being adultery it was necessary in order to maintain it to show that one or the other of the defendants was a married person.

The statute of 1876 on the law of evidence, Sec. 53 (Compiled Laws p. 376) declares that the statute shall not render, in .any criminal proceeding, any husband competent or compellable to give evidence against his wife, nor any wife competent or ■compellable to give evidence against her husband, except where such, evidence may now be given. The evidence now under consideration not being one of the excepted cases, we think it was improperly admitted. But the evidence of the wife herself when she took the witness stand in defense, proved her marriage with ITake, she admitting it fully. Ho harm therefore was done, and the defendants are not entitled to a new trial on the ground alleged.

A. G. M. Robertson, for prosecution.

E. Johnson, for defendants.

The defendants further say that the verdict was contrary to the evidence. A review of it shows that it abundantly proved the charge.

The exceptions are overruled.  