The Hawaiian gazette., 1869-03-17

Ine Coort - IN all civil lnattof< may apply
necessary remedies 10 evils thstare not sptci-
fcally contemplated BY law" II follows oy
tbs principle ~expressio unius exclaslo alte-
RUS that in erinsinal matters the Court do
no; have the discretion given them 10 civil
matters, OF applying aersS~ary fss,istiieS. but
must take the LAW as Il Is, with such light
As can DC gained from the common law Of
other countries and the civil hw,-our prae-
tlee has leAned in favor Of the common law
Of England, WHERE the same does not con-
fict with the laws aud customs OF this King
dom" The laws Of England and the United
States have furnished the basis for our own
laws-the reported cases In which the Eng-
lish language Is not used are not brought 10
our notice, and the genius and spirit VI the
English common law conform morc easily TO
our customs than the more artificial code Of
the civilians.
By the authorities this count is good. In
Commonwealth ys. Webster, 5 Cash. Sal,
Shaw. c. J., held that this Kind Of n count Is
good whenever the evidence Is satisfactory
that the homicide Was committed. but leaves
the mode of death somewhat doubtful That
case attracted general attention, and has
never been doubted, hut has been affirmed
repeatedly in otherconrts of eminent author
ity. People V. Cronin, IS, Cal, 30 In reA-
son and Justice, also, this count is undoabted-
Z " good. especially as the Jury We're charged
thai before finding verde, Of guilty upon
! il, they must ind that such uncertainty as 10
the mode did exist.
The next inquiry is upon the suficiency Of
the plea In bar. The statutes relied upon in
its support are See. lies Civil Code, amend
ed by Act, 1850, aRd Sec. Ills, which read as
follows
Sec. ll6S In all cases or offenses against
I the laws Of this Kingdom, triahle only BY
court Of record. the accused shall be srraign-
- Il 49,.
legal prosecutor Of the Crown, a soon alter
the commitment of the 0ffense of which he
Is accused as may be expedient; Ii being,
however, expressly enacted. that the presen-
tation OF an indictment against an accused,
shall not DC deferred beyond the term Of the
court, having jurisdiction over the alleged
odense, next succeeding the commitment
Of the accused for trial, by 4 magistrate hav-
Ing jurisdiction therefor. And the trial shall
then and there be proceeded with, unless the
same shall be postponed by the court TO
procure evidence on behalf OF the prosecu-
ton or defence
Sec. IT'S The failure to prosecute upon
the indictment. if found, st the ensuing term
of the court, unless the venue be changed,
or unless the cause be postponed by the
court, or 4 failure to sustain the indictment
upon the law involved, or verdict OF not
guilty by the Jury, or the successive disagree
ment Of two juries impanelled TO try the
cause, shall operate as an acQuittal of the
accused, and the court shall order his dis
charge from custody, subject, however. to
the provisions Of the next succeeding sec
tioA,n (In cases Of insanity.
Il Is claimed that there was no postpone
ment by the court to procure evidence, and
that acquittal must therefore result.
Il was strongly urged by the Attorney
General that the statutes cited are merely
directory and not imperative. But cases
cited to sustain this view, which relate to.
civil matters, 20 Irregularities due 10 els ma
jOr, or the act of God, or coming under sta.
tuses which do not prescribe the result Of
noncompliance, are not In point. The de-
eisiohS that new trials are not opposed to
constitutional or legal provisions that no
person shall twice be put in Jeopardy for the
same offence, proceed substantially on the
ground that only lsgal putting in jeopardy
Is intended. S CIR. Ev. sSf, and cases there
cited. The rule in Sec. Is, Civil Code, that
every construction which leads to an absur-
dity is to be rejected, can only apply in
doubtful expressions, and besides, what alb
surdiiy in going 10 trial at the same term
more than at the subsequent terms
II WAS further argued that before the act of
1856, the law limited the circuit terms to two
weeks, in which time, unless causes could
70 over, the criminal docket might not De
closed, aud a failure of justice result The
reply to this is, that when the law Is clear
and explicit, the courts must leave the leg
stature TO ''spply the necessary remedies"
If the law is defective, that the legislature Of
1865, took OF this limit of the length of
the terms, and, finally, that this case did not
require postponement 10 prevent failure of
justice.
Taking these sections together, We cannot
avoid the conclusion that they are impera-
tive, so far to require the cause TO be post
I fr- h. rrf-a u
TigAt, under the constitutional principle, that
speedy trials shall be had.
The position that aeQuittaln here means
merely discharge from custody, not prevent
ing another trial for the same offence, is not
tenable- 1t only remains to inquire whether
the law has been duly complied with.
The answer TO the plea ayers that after
trial, conviction and sentence of defendants
upon an indictment for another murder, sup
ported by the same evidence, and alleged 70
have been committed at the same time aud
place, and to be part Of the same transac-
tion alleged in this indictment, the Attorney
General stated that il was not expedient
to proceed to trial on the present case,
but that the same was not abandoned, and
that this suggestion received the open APP
pFoyal of the Court.
This answer is so far trayerssd as to
deny the ayermeat Of not abandoning
the case, and Of open approval by the
Court OF the suggestion made. But
even admitting this, although the course
adopted Is very Objectionable, on the score
Of informally, and although We cannot ad-
NIT that waiver Of legal rights affects this
case, We are convinced that virtually and
substantially there was a postponement of
the cause by the Court As there is no pre-
tence Of time being asked TO procure evil
dence, We must consider whether other
grounds suffice.
The rule that legal grounds must be pre-
sumed, unless the contrary appears, does not
apply here, since the actual grounds are set
ont in the pieadIngs-
By the rule Of Law, enacted in Section
Il, Civil Code, laws in pan materiz -
are to be construed together. Applying
this rule with the statute upon implied re-
peals- Sec 81, Civil Code, ne observe that
See. II6s excerpts only the case Of postpone
nent By the Court for evidence, and Sec. HIS
sxepts the eases Of postPO1ement By the Court,
generally, change of venue, quashing indict-
ments, verdict Of not guilty, and successive
disagreement Of juries. We car not for a
moment admit that See 116S repeals the
power Of the Ccart TO postpone for change Of
venue, or IN case Of the oTerrriing Of an ap-
peal from a refusal Of the Circuit Court TO
quash an Indictment That is, the general
statute power Of the Court to postpone causes
e not Affected by Sec los, which does not
atter1pt to enumerate them all, nor 70 exclude
any. Both sections may read as follows The
trial shall thea and there be proceeded with,
unless the Court postpone the cause to procure
evidence, or fcr other reasons So strong,
hoEeFer, are the statutes IN favor Of prompt
trial, that even the Court should exercise this
power only Eek neeessitafe rel, and where the
accused suffer ne injury thereby. The ease Of
necessity did not exist here, bat the postpone
meat worked only II favor Of the accused.
They ssre IN ial, not awaiting trial, but axe