The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-07-16

Nr4eIlce In the OOlrlS o. Ill> NoLnLLoll-
wealth. but it has been distinctly recog-
nized by this Court - being reasonable
and propar and not inconsistent with the
4 legal rights o. the defendant
Commonwealth V. Tuck - Pick $50,
Commonwealth V. Wheeler > Mass.
Ia
In the latter case tits eNpreSSiy stated
5y the Crlr. that. It : periectlv clear
r-a- b u1.le p-1>eQCI may De entered Al
tile pleasure 81 the prosecuting officer
before q Jury = ImpAnelei- The reasons
/ -lr the practice are there stated. and they
are numerous and decisive. Nor can we
see that there are any valid objections 10
II. Such q mode OF disposinEoi an Indict-
uent can il any way impair or affect the
rights u the accused party IN any future
. urlSacuto- for the same O1enSe. That
l. VII no. be reS1rted 10 caprIclously or
cvureS>yely. - 3 70 work any undue
harGShiuS on defendants, i sufficiently
. guarded against by lntruSung the exercise
.. The power 70 the sound discretion OF
IN officer 81 the Government, whose
/ junction i : 10 watch over and direct
/ the course OF criminal prosecutions, and
who can have no motive 10 use the au-
-rrrl-v vested IN him IN manner IDcon-
. si--eal with due regard to the rights
AMI Interests Of al parties.
Commonwealth vs.. Smith IS Mass. 10.
locAtu-l. c. j. cit Is the undouhted
right and power Of the Attorney Cen
a-al. Is the representative Of the Crown
In matters OF criminal law, TO enter 3
l1-le p-l>egE., and thereby Al once 10
STAY vr1cee1.u-s IN a criminal suit Of in
formation and no instance has been
cited. nor can any De found, in which
the Court. after q uclle prosegui had
been entered bv the Attorney General.
has taken upon Itself 10 direct such pro
ceel-UE~ 70 be prosecuted. Even II this
Court should DO 50. there : nothing 10
prevent the Attorney General from en-
-eriu- cl.le pro>egli totes QUOTES.
1T i not Tor this Court 70 create
precedent Of THIS Slrt where none before
existed precedent contrary 70 the IN
Outstanding OF the UroIesSlOn-an one
-lat would De trauElt with public mis-
chief Under ordinary circumstances,
10 doubt -ue Attorney General would
he. wisely in calling the prosecutions be
fore him before he proceeded 10 enter
-l.a .rl>egIl. but there may De partl-
crl4r cases In which from the knowledge
C the facts, " The particular nature Of
tae charge. the Attorney General might
think J. necessary 10 enter q nCl.e prose
lcl witlC1, adopting that course. Il can
NOT be commended for one moment that
there can nave been any abuse exercised,
by one whose functions are OF such highly
arr-T H.r.N
neel-aCl I only put ]. hyp1thetiCaily-
the remedy Is not by an application 10
this Court 10 interfere by the exercise Of
It's 115cut,el power and provocative. but
n hold him res Cusibie before the High
Court Ct Parliament. l am not al al.
disposed 70 establish 8 precedent in such
q case, and I think therefore there
should be no rule.
CrgmwOu. ] I am OF the same
opinion. think We have no power 10
90 what Is now asked q Us, and think
we ought not t0 interfere with the IN
doubted power Of the Crown vested il
the Attorney General. There i nothing
In the present case 70 take II out OF the
general rule think the Attorney Gen
aEal can interfere N my public prOsecu-
non whenever he ple2SeS, and al the
cases referred TO are clearly distinguish
able iron such one as this.
Blackburn. ]. am Of the same Opin-
ion. This particular branch Or the pre-
negative Is entrusted 70 the Attorney
General who on his own responsibility
determines whether the prosecution
shall 70 On or not.
.'Jel.or. J.. concured.'
ATT--- % 90 4
The following : related Of Sir John
Holt. Chief Justice Of the K B., in the
reigus q William and Anne. There
were some persons in London who pre-
tended TO possess the power OF ioretell-
ing future events, and who were called
the French prophets. Holt having upon
occasion committed one OF these 70
prison, g disciple Of his came 10 the
Chief Justices house and desired 70 see
him
On being admitted. he said: I come
from the L1r5, who babe me desire thee
70 grant 3 n0le prosegui for John Atkins,
his servant. whom thou hast thrown
into prison Thou art false prophet
and living kDsye, returned the Chief
Justice. Il the Lord had sent thee i
would have been 70 the Attorney Gen
eral. for the Lord knCTeth that i X not
in my power 70 grant nOIle pr0SeQUi."
In People vs. Mcleod, l Hill 405
note
and. without prejudice 10 any such
fresh prosecution, the Attorney for the
State may mol. pros. that Is discontinue
an Indictment, al any time after it L
found. previous 70 the moment when,
the defendant having pleaded, that Is,
made answer to II, 3 traverse jury Is i'm /
psneled and sworn to Try the cause"
! Bishop Ct. Law sec. !, SS6.
- nolle prosequi Is the voluntary
withdrawal by the prosecuting authority I
OF present proceedings on a particular |
bill. and q common law : 3 prerOgatIye 4
incident TO the sovereign. L may al I
common law be entered al any time /
before judgment, and the practice Is I
usual during trial or after conviction TO 1
enter il upon Objectionable counts, or /
parts Of counts, 50 Is 70 cOntne the YER /
dict 10 those which are good, Courts 4
have, Il i true, frequently held that the 4
p-eroEa.ive Is one subject 10 their con .
trll. while the case Is on trial, and that 4
the Attorney General has no right, after 1
the Jury : impanelled and witnesses /
called 10 withdraw the case without .
their sanction
Wharton CT. Pr. 4 Pl.
ct Is scarcely necessary for the Court 1
70 disclaim al pretensions to such 8
jurisdiction. An extravaganza, 50 absurd 4
and excessive, could not have been en-
tertained for Z moment. The province /
OF the Court i, solely to decide on the
rights q individuals, not enquire how /
the executive OF executive officers per