The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1889-07-11

1850 requires the Attorney-Gen-
eral to present the indictment before
the next ensuing term after the
commitment to the Judge who shall
after examination certify upon each
bill of indictment whether he finds
the same true bill or not.
What is the examination which
the Judge is required to make?
There is no grand jury here and
to some extent the Judge performs
its functions. The evidence taken
before the committing magistrate is
submitted to him, and he hears
statements from and makes inquiry
of the Attorney-General to the ex-
tent of ascertaining IL it is case
which ought to be tried. In the
supposable case of its appearing
that the evidence was frivolous and
entirely unsupporting the charge, he
would not find it true bill, and the
accused could not be put on trial.
Or in the supposable case that the
evidence being examined showed
case, say, of embezzlement when the
indictment charged forgery, he
would not approve the Indictment
for forgery.
Again if the form of the indict-
ment was obviously defective though
not charging different offense
fromthat presented in the evidence
he would probably not find it true
bill. The Courts approval of the
indictment as to form in no wise
precludes or prejudices any showing
by defendants counsel that the in
dictmcnt is faulty, and motions TO
quash or demur.
The Courts approval Of the bill
as being founded on evidence in no
wise identifies the Court with the
prosecution. l say this without
hesitation on the part of every
Judge living and dead who has &C.
cupied this Bench.
Examining the statutes previous
to those now in existence above re-
ferred to-the first is the statute of
1916 which organizes the executive
departments, and by which the office
of Acknowledgement was first con-
stituted and his duties prescribed
| (pages 264 ct seq, Section VIII. },
prescribes that every prisoner COM
mitted for, trial shall be arraigned
upon an indictment allowed by the
Judge. And (Section
TX. after plea the said Attorney
General shall, unless a postponement
be granted for cause by the Court,
proceed to make good by proof all
or any of the counts in said indict-
ment. So it appears that the At
torney-General had not the sole and
exclusive control, now claimed, Of
the prosecutions, for he could not
continue case unless by leave of
the Court granted for cause shown.
An absolute power to continue a
case, without cause shown and with
out leave, is equivalent to power
to continue and not prosecute at all.
This he had not, hut was command
ed by the law to prosecute.
In single instance under this
statute was the power given to the
Attorney-General to enter nolle
prosequi. (Section H. "When a
writ of habeaS corpus shall have
been issued by any Court of JUS
tice, to inquire by examination of
witnesses into the cause of the legality
of the imprisonment of any alleged
delinquent or criminal awaiting his
trial the Attorney-General
shall attend to see that the alleged
delinquent or criminal be not
enlarged without just cause. He
shall represent the prosecution in
all such cases and he may, when the
public interests require it, enter
nolle prosequi against a suspected
person." This statute is nearly
equivalent to the statute of 1876
above cited. The rule of eapressiC
uniuS est ercluSio diteriuS well ap
plies here. The authority is giver
expressly in defined instance, viz.
of preliminary inquiry for commit
| 'Lilu hOc gwen
The instance allowed is of u cas-,
not yet under indictment found
The general mandate of the law il
that the Attorney-General shall pro
secute.
BY joint resolution of the Legis
lature in 1916 subsequent to tn
passage of the organic acts in tn
same year, authority is given tn
Cabinet to appoint other publ
prosecutors, and to the Judge
of the Superior Court to ar
point district attorneys, pend
ing the appointment of new Al
torney General-the then Attorney
General, Mr.. Rfcord, it appears wa
about TO leave the Kingdom and hi
office was not filled.
In 1859 (Civil Code, Section
l080-1095) the law provided onl
for district attorneys, an Attorney
, General not being constituted by tn
Constitution of 1852. These distric
attorneys were appointed by tn
[ Justices of the Supreme Court fC
each judicial circuit of the Kingdom
: They gave bond to the Chief Justice
= they were commissioned for the teri
of two years, unless sooner remove
q by the Justices of the Supreu