The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1888-03-15
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our I1O0Or not HedTluS JuC uISu-
ment on the motion. Where is the
wrong committed by considering the
notion He asked the Judge to hear
the argument in favor of the motion.
Mr.. Neumann said that the Judge
was not sitting as q Committing
Magistrate, as the question now be-
fore the Court was motion to
quash a search warrant, issued by
the Chief Justice, and there was no
one to commit.
The Court decided to hear argu-
ments and take the matter into con-
sideration.
Mr.. Hatch presented the argu-
ment from the statutory standpoint,
and Mr.. Hartwell from the constitu-
tional.
Mr.. Peterson replied to the statu-
tory and Mr.. Ashford to the consti
tutional.
The Judge then took the matter
into consideration.
Mr.. Ashford asked for q remand
in w. S. Luce's case, until Monday,
in order to obtain the evidence of
the Minister of the Interior for the
Crown.
The request was granted and the
Judge arranged to meet the respect
i've counsel at IL A. NJ. to-day.
To-DAY's PROCEEDINGS.
The Court resumed at II A. NJ.
this morning, when Chief Justice
Judd gave his decision in regard to
vacating the search warrant.
OPINION OF THE CHIEF JUSTICE.
The case stated briefly is this: A
search warrant was issued by me on
the affidavit of the Attorney Gene
raj, the object of which was to pro-
cure the books of account of the ac-
cused with the purpose of using them
as evidence of certain transactions
which it is alleged will show con-
spiracy between the accused and
another to defraud the Hawaiian
Government of duties on imported
liquors.
l think cursory reading of the
statute defining and authorizing the
Writ of Search Warrant, Chap. AZ
of the Penal Code, would give the
impression that it could legally be
used for such purpose.
Section of the Act defines the
purposes for which this warrant can
be granted and among them is this:
" TO discover articles necessary to
be produced as evidence or other
wise on the trial of any one accused
of criminal offence" and it might
be said that as the books of the ac-
cused are "articles" and are deem
ed necessary to be used as evil
dence" the statute applies.
After hearing argument and hav-
ing taken time to reflect upon it, 1
have come to the. opposite conclu-
sion. l think the true meaning of
this clause in the statute is that in
order to authorize the seizure of
PARTICLES" to be used as evidence
the ARTICLES" themselves should be
evidence, that is, that they should
form part of the corpus delecti;
as, for example, the weapon by
which a homicide was committed, or
the bloody clothing worn by the
victim of an assassin, 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 weapon
which could produce death is not
criminal, but if such weapon has
been used, as the instrument by which
a murder was effected, and it is ne
cessary that it be used as evidence
Oh the trial.of the person accused of
this murder, a search warrant can
issue to ATTAIN it.
But in the case before me the
books of accounts as articles, that is
as material objects or chattels are
not evidence to be used. They are
desired by the prosecution for the
records they contain, that is, for the
entries of certain transactions, which
will have to be testified to and read
in order to be evidence.
These transactions, if they have
occurred, could be testified to by
witnesses if there were witnesses TO
the transactions (even if not record
ed). The books and accounts are
merely succint registers of the trans
actions themselves. In this view /
am of the opinion that the search
warrant was improvidently issued.
There is much force in the argu-
ment made by counsel for the de-
PENDANTS that Sec. 2, defining search
warrant limits this process to the
searching for articles illegally OBJ
tanned or detained or which are
kept for the purpose of using them
illegally.
l think, however, that this section
is mere definition, and that a war
rant might issue to obtain an article
necessary TO be produced as evil
dence against third party, from
the possession of one who is not the
party accused.
1t may be said that the withhold
ing from the prosecution of such an
article is illegal, that is, it is an Of
Tense against the law. But from
| such an examination of our Penal