The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1888-03-15
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Dress Goods,
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deposit with his friends the indicia
of his guilt and they be protected
in these acts. In such case the ex-
animation to be made by the magis-
trate Of the person in whose posses.
sion such articles are found would
he for an explanation as to how they
came into his possession.
A further objection is made to
the search warrant in that it does
not order the arrest of the person in
whose possession these articles
should be found. l think this is
sufficiently complied with by the
warrant Of arrest which was issued
contemporaneously.
Having found that the statute
which is invoked for the issuing of
this search warrant does not author
ize its use for the particular pur-
pose for which it was asked, it is un-
necessary for me to decide whether
it is inhibited by the 9th Article of
the Constitution which prescribes
that no one shall be compelled in
any criminal case to be witness
against himself. l merely remark
that i am still of the opinion that
where q constitutional question is
raised, if the Justice before whom it
is raised has grave reasons for be-
lieving that the procedure or act in
question is forbidden by the consti-
tuition he should reserve the ques-
ton for the consideration of the
Court, otherwise serious rights of
the Government might be lost as the
prosecution cannot appeal.
There remains to be determined
the question of practice, as to
whether L am authorized to
quash the search warrant in advance
of the articles for the production of
which it was issued, before offered
in evidence against the accused.
1t is to me novel request and no
precedent for it is shown by de-
PENDANTS counsel. 1t is certainly
unprecedented to ask o Court when
the accused has not been brought
before it, to ask that process of
the Court which is auxiliary to the
proceeding against him, should be
quashed.
In the cases / have had access to,
viz. us. VS.. Bryd 116 US. GIG, the
Court held that the inspection by
tile District -Attorney Of tile books
of the accused, which was COM
pulsory production by him of evil
dence against himself, and its adj
mission IN evidence were erroneous
and unconstitutional proceedings.
So in Commonwealth VS.. Dana 2
Metcalf 1888, the search warrant was
offered in evidence by the prosecu-
ton ''to the admission" of which
the defendants counsel objected, on
the ground that the same had been
issued improvidently and was void
in law" and the Court first proceeds
to discuss the question whether the
search for lottery tickets the posses
sion of which with the intent to sell
them was violation of law, was
such a reasonable search" as was
authorized by the Bill of Rights.
| still think that the motion was
premature and though | allowed
argument on the main question as
to whether the seach warrant was
authorized before this motion was
decided l did so for the con-
venience of myself as well as of
counsel. L do not hold it correct
practice to ask the Court to vacate
its process before the defendant is
before the Court and before the evil
dence which is urged to have been
illegally obtained is offered.
think that although there is
much authority for the position that
when papers are offered in evidence
the Court can take no notice how
they were obtained, whether law
fully or unlawfully, nor would it
form collateral issue to determine
that question, the later cases are
against this view, viz: the case
cited from l16 Z. S., and the recent
Anarchist Case. Spies VS.. People
of the State of Illinois, where the
Court contemplate that objections
should be taken at the trial when
this evidence is offered.
think the examination must pro-
coed and, having reached the
conclusion that the books of ac-
count procured by the search
warrant can not be received in
evidence, L will order them back
to the possession of the defend
ants, if offered in evidence, and
if not offered, will make the same
order at the conclusion of this ex-
animation.
The Acknowledgement and A. p.
Peterson for prosecution.
Messrs. A. S. Hartwell, +. M.
Hatch, w. A. Whiting for defend
ant.
Honolulu, March ID, 1888.
Rex. VS.. G. w. Macfarlane ct. al.
The case being similar make the
same ruling.
p. Neumann and f. nj. Hatch for
defendant.
The Court then ordered the Mar
shal to remove the seal from the
safe of G. w. Maclarlane & Co.
The accused were then arraigned,