
    REPUBLIC OF HAWAII v. W. KUHIA (k) and MUOLO (w).
    Appeal prom District Court op Honolulu.
    Submitted September 21, 1896.
    Decided September 29, 1896.
    Judd, O.J., Frear and Whiting, JJ.
    •The testimony of a clergyman that he was authorized, to solemnize the marriage contract, and that he married to another person one of the parties charged with adultery, is admissible and competent evidence.
   OPINION OP THE COURT BY

JUDD, C. J.

The defendants were charged with adultery, the said W. Kuhia being a married man. • Rev. H. H. Parker was called for the prosecution and testified that he was a minister and married W. Knhia and Emily Koliala, in January, 1894, in Honolulu. That he keeps a record of marriages and that he was licensed to perform the marriage ceremony.

The defendants’ counsel moved the district magistrate to strike out the testimony of Mr. Parker on the ground that it did not appear that he was authorized to solemnize the marriage ceremony, no record of such authorization being offered in evidence, and no excuse being offeree^ for not offering the same. This the court refused. Defendants’ counsel also asked the court to require Mr. Parker to produce his record of the marriage in question in order that defendants might thereby impeach Mr. Parker’s testimony. This -was also refused. The court found the defendants guilty and imposed "the sentence; whereupon the defendants appealed to this court on the points of law as above stated.

In 2 Greenleaf’s Ev., Sec. 461, the author says that direct proof of marriage is required upon indictments for polygamy and adultery and in actions for criminal conversation. “Other direct proof is made either by the testimony of a witness present at the celebration, or of the parties themselves, where they are competent.”

It appears that seldom the testimony of the celebrant can be procured and so the authorities say that the “celebration is .generally proved by the record thereof or by the witnesses present. The latter is considered stronger evidence, but it is not necessary under the rule for the best evidence to produce the record or the celebrant, unless perhaps the other evidence is purely circumstantial.” 14 Am. & Eng. Encyc. of Law, p. 523 and cases cited. “The record is a memorandum of the compact, not the compact itself.” Woods v. Woods, 2 Curt. Ecc. 516, 522, cited in 2 Bishop on Marriage & Divorce, Sec. 271.

The celebrant is certainly a witness to the ceremony and we can conceive of no better evidence than bis. The court did right in refusing to strike out the testimony.

As regards the want of production of the authorization to solemnize marriages. We think it was not necessary to produce it. The principle is that the presumption exists that a person exercising an official function has the requisite authority to exercise it. 1 Greenleaf, Sec. 92, expresses the principle as follows: “All who are proved to have acted as such are presumed to have been duly appointed to the office, until the contrary appears.” Doe v. Young, 8 Ad. & Ellis, N. S. 62; Plymouth v. Painter, 17 Conn. 585; State v. Abbey, 29 Vt. 60. See Gov. v. Oishi et al., 9 Haw. 641.

It was within the discretion of the magistrate to suspend the trial and order the witness called for the prosecution to produce his record, but it was not obligatory upon him to do so, for it was competent for the defendant to produce the record in court by a subpoena duces tecum addressed to the celebrant.

Dep. Atty. Gen’l E. P. Dole, for prosecution.

A. S. Humphreys,. for defendants.

The points of law are overruled, and the appeal is dismissed.  