The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1889-07-09
BRIEF OF A. s. HARTWELL,

The following brief was argued before
His Honor Justice McCully last Satur-
day, July 9th, when His Honor reserved
his decision:
In the Supreme Court of the Hawaiian
Islands, July Term, 1899. The King
VS.. Robertson, indicted for assault
with deadly weapon, etc.
The Attorney-G General having mol
prosd the case, and the defendant by
his Counsel being present in Court, and
consenting thereto, the Court said that
its consent was required which itrefused
to give. Later on the Court declared
that it would hear argument on the
question of the right of nolle prosequi,
and it is on that question that counsel |
for the Attorney-General now appears.
l. The Attorney-General and his |
counsel claim that it is the unqualified, |
exclusive and absolute right of the At |
torney-General, upon his official respon- |
sibility, for the discharge of which he is
not responsible to the Justices of this
Court, to decide whether he will or will
not prosecute indictments as we'll after
they are found, as before. The express
sion mol pros, or more fully, dicit nolle
eral says that he Will not prosecute. In
such case, who can make him prosecute?
1t is an absurdity in terms to say that he
can be forced into the prosecution. No
writ, process, order or rule OF Court
known to the law can be suggested, hav-
ing such effect. 1t would assign to the
Court the duty of prosecutor, contrary
to all imaginable theory.
The Court is not the guardian, protec-
tor, or enforcer of the rights OF the Grown
or Government, or, to use the American
and popular expression, of the people,
! but only of the parties brought before
| the Court in any particular case. Ii the
| Acknowledgement discontlnues prose-
cution after jury is impanelled and
sworn, or later still after the case is sub
mitted to the jury, or even after a verdict
of guilty is rendered, the Court has only
to say whether such discontinuance, If
opposed by the defendant, shall operate
| as an acqulttal.
The statute provides that before the
Indictment is found, the defendant may
at any time be released from custody
and from the charge pending against
him, upon the Attorney General filing a
certificate with any judge OF the Supreme
Court that he declines to present al in
dictment, the Judge being required
thereupon to order the discharge. In
such cases no reasons are required to be
named By the Attorney-General for his
course, and the statute leaves no discre-
ton to the Judge, but to order the de-
fendant's release.
The only reference which the statute
makes to releasing defendant without
trial and after Indictment found, is that
failure to prosecute at the term next
ensuing (unless the cause shall have been
postponed, or the venue be changed, by
the Court,) "shall operate DIS an acquit-
tai of the accused, and the Court shall
order his discharge from custody"
No order of Court can prevent such
, "failure to prosecute" whether it result
from want of testimony, lack of prepare
ton, or from i'll considered, or well con-
sidered, from good or bad reasons on the
part of the Attorney-General. He is moi
required to give any reasons for not pro-
scouting.
2. The duties of the Attorney General
as defined by the Act of July q, 1866
: require him to appear personally or by
| deputy in Courts of record in all Grown
or Government cases, and to be vigilant
and active in detecting offenders against
the laws, and to prosecute the same with
diligence. The Constitution makes him
a member of the Cabinet, and, as such
one OF the Kings special advisors in the
executive affairs of the Kingdom, re-
moval only upon vote Of want of conf
dence, or upon conviction of felony and
subject to impeachment.
The Constitution, Article 20, declares
that, "the Supreme Power of the King
dom in it's exercise is divided into the
, Executive, Legislative and Judicial
These shall always be preserved dis
tinct."
If the Judicial Power can be extended
. to requiring the AttorneyGeneral, the
head of one of the executive depart
ments, and special adviser of the Sow
ereign, to prosecute any specified case
on penalty of fine or imprisonment, this
would not permit the exercise of execu.
: tive and judicial powers to be preserved
: distinct, it would annul the discretionary
! and voluntary exercise of executive
l power, as far as the Acknowledgement is
concerned. That officer is liable to lose
his Office if convicted of felony, i'm
peached, or if the Legislature shall vote
want of confidence in him; but in nc
other way can his official conduct or mis-
; conduct be controlled, except in case OF
, his committing a criminal offense.
: Whether, as used to be claimed here,
Crown cases always have precedence to
civil cases on the calendar of Court, or
the Court may direct the order of trials
to suit its own views, is irrelevant to the
! question under consideration. Whether
the Attorney General shall or shall not
be vigilant in detecting and prosecuting
offenders, the public will note, and, by
their votes at the polls, and by their
: elected representatives in the legislature
! will decide. But such decision is not
entrusted to the judicial power.
3. The exclusive power to mol pros
case at any time before jury is sworn
to try it, rests with the Attorney Cen
eral even if the defendant objects, &C
cording to the law as laid down by
English and American text writer's and
; Courts certainly in England since the
days OF Charles II.
"The Kings Attorney qui sequitur
prodomino rege, may enter an uterus
ron vult prosequi which hath the effort
of non suit"
Coke Lit 139 b.
''For obvious reasons the functions of
the Court and prosecuting officer are en-
tirely distinct. The Court cannot usurp
the duties of his office and say what cases
shall and what shall not be prosecuted.
The law has lodged that duty with Off
GERS selected for that special purpose,
and who are responsible for the manner
in which thav nerfOrm those dIties .,