The Hawaiian gazette., 1886-08-03

Exceptions from the May term 1856, OF the Inlru
Judicial Circuit Court.
nc defendants were charged in the Police Court
of Hio. from whence the case was appealed to the
Circut Court, with violation OF the laws relating
TO elections, IN neglect to perform certain ofnelal
duties prescribed to a District Judge and Tax
Collector, which the defendants severally were, by
Section and Of the Act OF 1865, and were on con-
viction sentenced according to Section SD Of the
Civil Code.
These laws are as follows:
Section g. The Inspectors of Elections, viz the
Police or District Justice, the Tax Collector and
the Tax Assessor, or IL their absence agents ap-
pointed by them shall. al least fifteen DAYS before
the day of holding any election for Representa-
tives excepting such as may be ordered pursuant
10 the provisions of Section 797 of the Civil Code
make out and cause copies 10 be posted at the
place where the election Is be held and at least
other public places IN the district. correct al
phabetical lists of all the persons in the district
who may be qualified TO vote, and whose names
may appear upon the list returned 10 the Inspect
ors OF Elections by the Tax Collector OF the dis
trict, as IN the last preceding Section required.
=''Sectlol Z. The Inspectors OF Elections afore-
said, shall hold at least two sessions OF reasonable
ano suIncient length, al some convenient place IN
the district not less than ten than twenty
days next preceding the day OF holding an election
for Representatives, for the purpose of receiving
evidence OF the qualifications OF persons. who may
not have been previously registered, by the Asses
sor or Collector on the assessment register, as pro-
vided in Section 3 and I Of this Act. and who NAV
claim a right to vote; and also for the purpose of
correcting when necessary. the alphabetical lists
of voters provided for IN Section 6 of this Act.
Notice Of the time and place of holding such ses-
sions respectively shall be given by the Inspectors
of Election upon the alphabetical lists posted, as
provided in Section OF this Act: and at such ses-
sions any one offering testimony against the right
of any person TO vote whose name NAV appear in
the aforesaid alphabetical lists, shall be reason
ably heard; and If the Inspectors aforesaid shall
be satisfied such hearing, that the name of
such person should not have been placed on the
register, they shall at erase the same there
from.
'Section SD. ANY inspector of election who shall
wilfully neglect, or refuse TO perform any of the
duties required of him respecting elections shall
be fined not exceeding one hundred dollars. and
be disqualified from holding any Office under the
Government
The first point made in the bill of exceptions is,
that the Court erred IN denying motion, noted
in the bill as follows: and upon said trial in
said Circuit Court, after the jury had been sworn
IN the cause, counsel for defendants moved the
Court that said defendants be dismissed. and that
the prosecution herein be quashed for the reason
that the Sections of the law pertaining TO Elect
ions. 10 wit: Sections and : of the Act of 1865
on pages % and 224 of the Compiled Laws, under
which the prosecution is brought, prescribe no
penalty for the nonobservance of the Acts therein
and thereby enioined upon the Board of Inspec-
tors Of Election, nor Is any penalty prescribed for
their non observance
A motion TO ouash. Arehbold Grim. Pl. Vol. J.
page SS7. Is addressed 10 the sound discretion of
the Court, and Is not proper subject of excep-
ton, citing inter al, Com. Eastman, I Cush. 1S9
state Y Putnam .. Name 1876. w. u. Y StOTell. .
Curtiss 153, Utah Stuart .. Maine, III. Says
Appleton J. IN State Putnam. 4" Ii is within the
discretion of the Court in which an indictment is
pending to quash II or 10 leave the defendant to
his motion in arrest of judgment. The refusal to
QuRsh an indictment is not proper subject of
exception. The party indicted, has his remedy,
by motion in arrest of Judgment, or by demurrer
70 the indictment"
We remark secondly, that as motion to Quash
the charge, ii was made too late.
At this stage OF the proceedings the defendants
must be considered TO have pleaded. To appeal
fr M the cNhYiction of lower Court and demand
trial is equivalent to plea of not guilty. 1t Is
general rule of pleading that motions TO Quash
must be made before plea, and the plea cures de-
fects in the indictment for the purposes of the
trial Of the Issue. Our Statute Act of 1876, Chap
III, Section 3S. found at page 347, of Compiled
Laws provides that every objection to indict-
nent for any defect apparent on the face thereof,
shall be taken by demurrer or motion to quash
such indictment before the accused has pleaded,
and not afterwards" The Court was therefore
right IN refusing, after the jury was sworn to
Exceptions are also taken 10 the refusal of the
Court to give the following instructions, num-
bered l, ?, and 4, requested by the defendant.
al Il is the right of District Judge, Tax Asses
sor or Collector, TO appoint deputy to represent
him on the Board Of Inspectors of Election, IN
cases where the absence other duties of the Off
Ger render it announcement or impracticable for
him TO DISCHARGE its duties" The Statute autho-
rity concerning the appointment of agents or
deputies is contained in these words IN Section 6,
of the Act Of 1858: The inspectors of election
viz the police or district justice. the tax collector
and the tax assessor, or in their absence, agents
appointed by them, shall, etc.
The charge of the Court is incorporated with
the bill of exceptions. Upon this point it is as
follows With regard TO Kekoa's right to appoint
a deputy TO act for him IN his absence, the sab
sence" meant by the Statute is an actual absence
from the place. where the meetings OF the Board |
are held" We regard this a sound interpreta- I
ton of the Statute. Its terms vague in not I
expressing grounds of excusable absence justify 4
ing the appointment of deputy or agent, but by 4
the plainest rules of construction, he must be !
absent: if he is present and in attendance at the
meeting of the Board, 1t would be violation of 4
the term TO say that he was absent: the words in
their absence have meaning, but II Is frustrated
BY the construction claimed for II by the defend
ants counsel he asks that there be imported into
the Statute conditions not expressed therein, 1
namely where other duties of the officer render 1
il announcement or impracticabe for him to dis 4
charge his duties" It is enough to say this is not
the law nor to be implied from 1t, and the Court +
could not properly instruct the jury that it was,
as requested.
(2) The next instruction asked is, sit was the 4
right of the defendant kekoa, in this case TO ap-
point deputy if his other duties iDterfered with
his performing the duties of such Inspector: this
is covered by the ruling on the first instruction.
The remainder of the instruction. that the princi-
pal officer cannot be held TO be criminally liable
for the acts of his deputy, was not refused to be
given the Court instructing only that there could
not be considered TO be deputy where the prin-
cipal was not absent. The evidence In the case Is
that Kekoa sat with the Board AT its meetings and
assisted 10 make three alphabetical lists Of voters
names, two of which were correct and agreed with
each Other. but IN the third list, the one Cpon
which the polling of votes was had thirty-ny
names were omitted by hekoa. although the num-
bers of the tax receipts were given hekoa testl
1es that he did this. trying TO see which would
be the smartest. Kauwila the Opposition candidate
or himself" BE only appointed bis deputy on
the day of the session of the Board when the lists
were revised. he being present IN the room and
only one meeting for revision being held.
The charges relate TO prior malfeasance,
namely: In failing TO hold two meetings of the