The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1882-12-09

Mrs. Berry slafdd Chat she did not emsmbcr
having DR.. Fitch rs her attending physician in
January last She remembered his being az hcg
house. and he gave her medicine. She had
paid DIR. Fitch for his services.
Mrs. Tregioan stated that DIR. Fitch had sent
her for DIR. McGrew in January last. When she
went for him Mrs. Berry was insensible. and
they all felt afraid.
His Honor gave judgment for plaintiff for IS
and costs, S7.I5.
Appeal noted to Intermediary Court.
HANG LUSo KKE & Co. VS. PoLIcg orrrcERs
MARCOS AND OADT.
SUIT FOE DAMAGES.
On Saturday last, Messrs. Hang Lung Kee
and Co. sued Police Officers oadt and
Marcos for damage arising out of an alleged
November last by the defendants. Mr.. A. S.
Hartwell appeared for the plaintiffs, and Mr.. JIM.
Davidson for the defendants. The partners Of the
to the manner in which the house was entered by
the police, and not being shown any warrant until
the search was over. For the defence, Oadt swore
that he read the warrant TO the plaintiff, Leasing.
The warrant was dated the 18th October, and the
search was made on the 9Th November. He had
made an erasure on the warrant, but did not re-
member when he did it. Marcos and Tell cor
roborated the former witness testimony. Tell
was complimented for the straightforward manner
in which he testified. The main points on which
the defendants based their right of entry was the
door being open. The Chinese witnesses asserted
that The door was closed. though not locked.
Oadt stated that he never executed a search war
rant unless the door was open. Mr.. Davidson
addressed the Court at considerable length on be-
half the defendants, maintaining that the officers
were justified in the search, provided they used no
violence. Mr.. Hartwell. for the plaintiffs, said
that the execution of opium search warrants was a
source of great oppression, and the manner in
which they were used was likely to bring the Law
into contempt 1t gratihed him (Mr. HartwelD
to see that these men (the ~plaintifs) were deter
mined to have a test made Of this case. In his
opinion these search warrants were entirely void,
and never ought to be issued. He called the stten-
fiOn Of hi Court ~ tho I'll All - IL 4Gsl
Chapter of the Penal Code : Before executing
the warrant, the officer must give notice to the
person who applied for it, that he may be present
and identify the property if found. The learned
counsel also drew attention to Section 2, same
chapter, which reads as follows "A search war
rant is an order in writing made by a justice, or
other magistrate, directed TO an officer OF Justice
commanding him to search for certain articles
supposed to be in the possession of one who is
charged with having obtained them illegally, or
who keeps them illegally, or with the intent OF
using them as the means of committing a certain
ofense."
Officer Marcos, requested permission to cor
rect part of his evidence before Judgment was
delivered. He had previously stated that the
warrants were in his possession from the time
they were issued until a return was made. This
was an error. They had been passed into the
hands of two or three differen. officers.
His Honor Judge Bickerton delivered the fol-
lowing
JUDGMENT.
1 have given this case very close consideration
as L look upon it as an important matter. In
the first place, / will give no judgment or opinion
on the part that refers to the issuing Of the
warrant there are also other points that / shall
not consider, for this reason, viz: there are
questions that will come up in a case pending
against myself and the Marshal. The declara-
ton of the plaintiffs is, that they were disturbed, |
illtreated, and that there was undue violence
used. There is no evidence to support that.
From the evidence on both sides il is very clear
that the officers behaved III q proper manner, and
were not insulting in their conduct. / feel salts
fed that the door was opened, that is,
being a folding door, part of it was
open. 1 am also satisfied that no force was
used, and that the defendants performed their
duty in an oficerlike manner. These two officers
went to the plaintiffs premises two catch opium
smokers, and not IN search of opium in large
quantities that might have been smuggled. II
was Marcos to whom the warrant was delivered,
and he who swore, on information received, that
opium would be found there. When they
1.-THE officers) went upstairs they found no smell
of opium, and Oadt exclaimed, "We are sold"
They proceeded to leave the building. The
only remaining question to decide is, were Mar
cos and Oadt acting under proper authority y, and
whether they performed their duty after the war
rant was in the possession of Marcos? The object
of a warrant is, to get something speedily it
gives authority to the person who holds it to
enter a premises without delay. The wording
of the warrant conveys that meaning. Now the
warrant was issued on the 18th of October, and
the search was made ON the 9Th November.
Quite a space of time had elapsed. / do not
IniuA l. onOuAu oS uOlub ilBut u HuOTS tue dciS
of officers who keep warrants for three weeks
without making any return. 1t would have
been a different thing if it had been a quantity
of opium that was sought after. The warrant
was issued to find men smoking. If successful
they 1.-THE police) were not justified in keeping
that warrant Sunday after Sunday. If they
failed in the first instance, the warrant should
be returned forthwith. IL might be that the
officers had not received proper instructions, at
the same time I must hold that warrants cannot
be held for this length of time. 1t was not the
place of this Court, after issuing warrants, to
look after the execution of the same. / must
hold that it is the officers duty 10 make a
return within q reasonable time. If i endorsed
the action of the police in this instance, there tx
no reason why warrants could not be carried
around for months. There is, perhaps, some
excuse for these officers in the want of instruc-
ions. / do not think the plaintiffs had sus-
a great deal of damage. 1 give judgment
or plaintiffs for $40 damages and costs.
Mr.. Davidson, counsel for the defendants,
he did not think he should appeal. The
as expressed by His Honor were in ac-
with his own, but he did think be
mount of damages should be less. He thought
hat So each would cover the grounds.
His Honor said he looked upon it as IA very /
case, and one that should be marked.
70 make the damages $5 each would be making
farce of the matter.