The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1888-03-16

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 produc-
ton of which it was issued, before Of
fered in evidence against the accused.
1t is to me novel request, and no
| precedent for it is shown by defendants
counsel. 1t is certainly unprecedented
to ask the Court when the accused has
not been brought before it, to ask that
process of the Court which is auxiliary
to the proceedings against him, should
be quashed.
In the cases l have had access to, viz. ::
U. S. VS.. Byrd, 116 U. s., GIG, the Court
held that the inspection by the District
Attorney of the books of the accused,
which was a compulsory production by
him of evidence against himself, and its
admission in evidence were erroneous
| and unconstitutional proceedings.
So in Commonwealth VS.. Dana, 2 Met
calf, 333, the search warrant was offered
in evidence by the prosecution ''to the
admission" of which the defendants
counsel objected, on the ground that the
same had been issued mprovidently,
| 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
reasonable search" as was authorized
by the Bill of Rights.
l still think that the motion was pre-
mature, and though [ allowed argument
on the main question as to whether the
search warrant was authorized before
this motion was decided, did go for the
| convenience of myself, as we'll as Of
counsel do not hold it correct prac-
tice to ask the Court to Yacate its pro-
cess before the defendant is before the
Court and before the evidence 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 OBJ
tanned, whether lawfully or unlawfully,
nor would it form a collateral issue to
determine that question, the later cases
are against this view, viz: The case
cited from 116 U. s., and the recent An
archist 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 proceed,
and, having reached the conclusion that
the books of account procured by the
search warrant cannot be received in
evidence, [ will order them back to the
possession of the defendants, if offered
in evidence, and if not offered, will make
the same order at the conclusion of this
examination.
The Attorney General and A. P. Peter
son for prosecution.
Messrs. A. S. Hartwell, F. NJ. Hatch,
w. A. Whiting for defendant.
MACFARLANE's CASE PROCEEDS.
The Court reassembled at p. M. for
the preliminary hearing of evidence in
the case of the King VS.. @. w. Macfar-
lane, before the Chief Justice, as exam
lining magistrate The first witness called
by the Attorney General was G. E.
Boardman, Deputy Collector of Customs;
after whom l. O. Tewkesbury, store
keeper of the bonded warehouse; Col.
Curtis p. Iaukea, H. MS Chamberlain;
E. G.. Macfarlane mot a member of the
firm of G. W. Macfarlane & Co.., and
William Lishman, cashier to the firm,
were successfully called as Crown wit
nesses.
It is understood that the examination
of the last named witness by the Attor-
ney General is not yet completed The
latter had occasion to put a question as
to the particulars of an entry In the
books of the firm. Mr.. Neumann in
terposed an objection, saying this was
not the best evidence. Mr. Ashford re-
piled that it was the best the prosecu-
ton could get A considerable amount
of argument followed, Mr.. Neumann
contending that involved the principle
already objected to in the motion to va
cate the search warrant, which had been
upheld. If the contents of mans books
were to be used in evidence against him,
he was virtually giving evidence against
himself.
AS the hour was late, Mr.. Hatch re-
quested the Court to hold over the point
until the following day, when he would
bring forward authorities. The request
was acceded to, the Attorney General
saying that he would also produce au-
thorities.
At the conclusion of the case the Chief