The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1889-07-12
SUPREME COURT.
JULY TERM.
THURSDAY, July II.

The King VS.. J. r. Robertson. When
this case was reached on the calling of
the calendar the first day of the term
His Excellency Acknowledgement Ash
ford said that he asked leave to enter
nolle prosequi or that he desired to or
moved to enter nolle prosequi or to
that effect, the precise words used not
being then noted, giving as a reason
therefor the absence from the kingdom
of one Louis Magoney whom he styled |
the prosecuting witness.
The Court responded that it would
take the matter of granting leave to
enter the nolie prosequi under advise
ment and upon the following day an
nounced that it did not deem the alb
sence of this witness sufficient reason
for not bringing the case to trial if he
were not the sole witness on which the
case depended, which was not alleged,
and therefore declined leave of Court
for the entry of nolle prosequi.
Thereafter, Alfred S. Hartweu Es-
quire, requested the Court that he be
allowed to appear in this matter. On
the 9th of July Mr.. Hartwell presented
argument to the Court as Counsel for
the Attorney-General,o on the right OF the
Acknowledgement to decline to prose-
cute"
For the complete understanding of the
position taken by the learned counsel
for the Attorney General, his brief is
given in full on the second page OF
Tuesdays issue of the ADVERTISER
10Th inst.)
BY THE COURT.
The proposition of the counsel for the
Acknowledgement that at the common
law the Attorney General of England
and of States which have adopted this
part of the common law has the right
upon his sole responsibility to enter a
nolle prosequi is not doubtful and has
not been questioned by this Court.
But the common law is not in force as
such in this Kingdom. This is not an
English colony which has brought out
the law of England to be in force here
except as modified by express statute.
The law of this country is found in our
enacted statutes and in the presidents
established by decisions of OR Supreme
| Court, in which it is allowed, Section
1913 of the Civil Code, ''to cite and adopt
the reasonings and principles OF the adj
miralty maritime and common law OF
other countries and also of the Roman or
| civil law SO far as the same may be
founded in justice and not in conflict
with the laws and customs of this King
DOM" This doctrine has been fire.
quently expressed by the Supreme Court
This part of the common law has not
been enacted nor adopted here, nor could
duty and power of the Attorney-Gen-
eral be imposed or assumed or with
drawn upon consideration of what was
the law of other countries.
The uniform practice of the Supreme
Court and of the Circuit Courts has beer
that the Attorney General by himself OF
his deputy, when desiring to nolle pros
a case after indictment found, asks leave
of the Court that it may be so entered
giving the Court or the presiding justice
some satisfactory reasons therefor. These
reasons are not always given publicly il
the Court They are frequently pre-
sented to the Judge in his office, anC
upon the motion being made in Court
the Court in response sometimes states
the reason given, and sometimes merely
says that for satisfactory reasons give1
the nolle pros. may be entered. l state
this to be the custom of the Court upor
my own knowledge as a Justice fOl
twelve years and as Deputy of the At
torney- General for four years, and upol
inquiry of my brethren on the Bench
} two of whom have held the Office o
Attorney General, and who say that tn,
practice has been uniformly as l hav'
stated it.
F Our statute of Criminal Procedure
(Act of '76 G. L. p. 1881 provides for tn,
discharge without prosecution of per
sons imprisoned under committal 70
trial for any offense, by the Attorney
Generals granting certificate to thu
Justices or a Justice of the Supreme
Court that he declines to present an in
dictment in the specified case, where
upon the Justice or Justices shall there
upon issue to the Marshal warrant O
discharge of such person from custody
This statute was enacted In 1876, ant
as it provides only this method of dis
: charge upon the sole responsibility anC
authority of the Attorney General,
think it may be inferred that the exist
ing practice was not intended by thu
Legislature to be varied in other respects
The Court has control over continu
ance of a case by Section 80 of thu
Criminal Procedure Act of 1876, IF the
Court before which any person is in
dicted shall, upon the application OF sucf
person or otherwise, be of opinion thai
he ought to be allowed further time t.
plead, etc." the Court may grant furthe
time or continue to another term, Ger
} tainly without the control of the Attor
ney-General.
/ Section Is of the same Act gives the
! power to the Court to change the venue
of any criminal proceedings to any Other
Court of Record, for such reasons as the
justice of the case may require, and sub
| ject to such conditions as the Court may
in its discretion impose. In regard t.
all which the Attorney-General would bt
heard but the decision and control would
be of the Court.
The Act of 1866, now in force, defining
the duties of the Attorney-General &C
L. p. 815) require him TO be vigilant anC
active in detecting offenders against the
laws and to prosecute them with diligence
The law (Sections and 2 of the Act O
1870 requires the Acknowledgement t.
present the indictment before the next
ensuing term after the commitment tC
the Judge who shall after examination
certify upon each bill of indictment
whether he finds the same true bill Oh
not.
What is the examination which the
Judge is required to make?
There is no grand jury here and to