The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1889-07-12
TIRE NOLLE pRoSEoul CASE,
Brief OF A. n. BartwelI, Counsel for
the Attorney-Generni.

In the supreme Court OF the Hawai-
ian Islands, July Term, 1889. The
King VS.. Robertson, indicted fer
assault with deadly weapon, etc.
The Acknowledgement having mol
pros'd the case, and the defendant
by his counsel being present in
court, and consenting thereto, the
Court said that its consent was re-
CURED, which it refused Ito give.
Later on the Court declared that it
would hear argument on the ques-
ton of the right of nolle prosequi,
and it is on that question that coun-
sci for the Attorney-General now
appears.
/. The Acknowledgement and his
counsel claim that it is the unquali-
fed, exclusive and absolute right of
the Attorney-General, upon his Of
fetal responsibility, for the discharge
of which he is not responsible to the
Justices of this Supreme Court, to
decide whether he will or will not
prosecute indictments as well after
they are found, as before. The eX-
preston mol. pros, or more fully,
dicit nolle prosequi, means that the
Acknowledgement 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,
having such effect. 1t would assign
TO the Court the duty of prosecu-
tor, contrary to all imaginable theory.
The Court is not the guardian,
protector, or enforcer of the rights
of the Crown or Government, or, to
use the American and popular eX-
preston, of the people, but only of
the parties brought before the Court
in any particular case. If the At
toruey-General discontinues prose-
cution after jury is impanelled and
sworn, or later still, after the case is
submitted to the jury, or even after
verdict of guilty is rendered, the
Court has only to say whether such
discontinuance, if opposed by the
defendant, shall operate as an &C
quittal.
The statute provides that before
the indictment is found, the defend
ant may at any time be released from
custody and from the charge pend
ing against him, upon the Attorney
General fling certificate. with any
Judge of the Supreme Court that he
declines TO present an indictment,
the Judge being required thereupon
to order the discharge. In such cases
no reasons are required TO be named
by the Acknowledgement for his
course, and the statute leaves no
discretion to the Judge, but to order
the defendants release.
The only reference which the stat
ute makes to releasing defendant
without trial and after indictment
found, is that a failure to prosecute
at the term next ensuing (unless the
cause shall have been postponed, or
the venue be changed, by the CourO,
'shall operate as an acquittal of the
accused, and the court shall order
his discharge from custody
No order of Court can prevent
such failure to prosecute, T" whether
it result from want of testimony,
lack of preparation, or from i'll con-
sidered, or well considered, from
good Or bad reasons on the part OF
the Attorney General. He is not re-
quired to give any reasons for not
prosecuting.
2. The duties of the Attorney
General as defined by the Act of
July 81, 1866, require him to appear
personally or by deputy in courts OF
record in all Crown or Govern nent
cases, and to be vigilant and active
in detecting offenders against the
laws, and to prosecute the same Will
diligence. The Constitution makes
him member of the Cabinet, and
as such, one of the Kings specia
advisors in the executive affairs o.
the Kingdom, removable only upon s
vote of want of confidence, or upor
conviction of felony, and subject tt
impeachment.
The Constitution, Article 20, de
clares that, "the Supreme Power Of
the Kingdom in its exercise is
divided into the Executive, LegisIa
tive and Judicial. These shall al
ways be preserved distinct. :"
If the Judicial! Power can be ex
tended to requiring the Attorney
General, the head of one of the ex
ecutiye departments, and specia
adviser of the Sovereign, to prose
cute any specified case on penalt,
of fine or Imprisonment, this woult
not permit the exercise of executive
and judicial powers to be preserved
distinct, it would annul the discre
tionary and voluntary exercise o
executive power, as tar as the AT
torney-General is concerned. Tha
officer is liable to lose his Office j
| nonyiota1 of folonU innnnochad n