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


day, when His Honor the Chief Justice
delivered the following
DECISION:
! The case stated briefly is this: A
search warrant was issued by me on the
affidavit of the Attorney General, the
object of which was to procure the books
of account of the accused with the pur-
| pose of using them as evidence of certain
transactions which it is alleged will
show conspiracy between the accused
and another to defraud the Ha waiian
! Government of duties on imported
liquors.
think cursOry reading of the stat
ute defining and authorizing the writ of
! search warrant, chapter 48 of the Penal
| Code, would give the impression that it
could legally be used for such purpose.
Section of the Act defines the pur-
poses for which this warrant can be
granted, and among them is this: 'To
discover articles necessary to be pro-
duced as evidence or otherwise on the
trial of any one accused of criminal Of
fense," and it might be said that as the
! books of the accused are ARTICLES" and
are deemed necessary to be used as
evidence" the statute applies.
After hearing argument and having
taken time to reflect upon it, l have
come to the opposite conclusion. |
think the true meaning of this clause in
the statute is that in order to authorize
| tho Coi1r,ra of EEarticIacJ, tO Io ,,SaJ -,
evidence the GO articles - themselves
should be evidence; that is, that they
should form part of the corpus delecti
as, for example, the weapon by which
! homicide was committed or the bloody
clothing worn by the victim of an a3sas-
sin, etc., these forming class of articles
distinct from those the bare possession
of which is criminal, as, for example,
the implements and material for making
| counterfeit coin.
The mere possession of a weapon
which could produce death is not crimi-
nal, but if such weapon has been used
as the instrument by which a murder
was effected, aDd it is necessary that it
be used as evidence on the trial of the
person accused of the murder, search
warrant can issue to obtain it.
But in the case before me the books
of accounts as articles, that is, as ma
terial objects or chattles, are not evil
dence to be used. They are desired by
the prosecution for the records they con.
tain, that is, for the entries of certain
transactions, which will have to be testi-
fed to and read in order to be evidence.
These transactions; if they have oc-
Cured, could be testified to by witnesses,
if there were witnesses, to the transac-
tons (even if not recorded.) The books
and accounts are merely succinct regis
tiers of the transactions themselves. In
this view, am of the opinion that the
search warrant was improvidently issued.
There is much force in the argument
made by counsel for the defendants that
section 2, defining search warrants, limits
this process to the searching for articles
illegally obtained or detained or which
are kept for the purpose of using them
illegally.
think, however, that this section is
mere definition, and that a warrant
might issue to obtain an article neces-
Try to be produced as evidence against
third party, from the possession of one
who is not the party accused.
1t may be said that the withholding
from the prosecution of such an article
is illegal, that is, it is an offense against
| the law But from such an examination
o. our Penal Code as [ have been able to
make, cannot find that such an act
would be punishable, and [ am not will
! ing to say that search warrant could
not be applied to such purpose, for
otherwise an offender could deposit with
his friends the indicia of his guilt and
they be protected in these acts. In such
case the examination to be made by the
magistrate of the person in whose pos
session such articles are found would be
for an explanation 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 posses
sion these articles should be found.
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 authorize its use for the
particular purpose for which it was
asked, it is unnecessary for me to decide
whether it is inhibited by the 9th article