The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1889-07-11
SUPREME COuRT..-JULY TERM.
BEFORE M'CuLLY ].


the calling of the calendar the first
day of the term His Excellency At
torney- General Ashford said that he
asked leave TO enter nolle proscqui
or that he desired to or moved to
enter nolle prosequi or TO that eff
feet, the precise words used not be-
ing then noted, giving as reason
therefor the absence from the king
dom 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 nolle prosequi un-
der Amusement and upon the follow
ing day announced that it did not
deem the absence of this witness a
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 there
fore declined leave of Court for the
entry of nolle prosequi.
Thereafter, Alfred S. Hartwell,
Esquire, requested the Court that
he be allowed to appear in this mat
ter. On the 9th of July Mr.. Hart
well presented argument to the
Court as Counsel for the Attorney
General, on the right of the Attor-
ney-General to decline TO prose-
cute"
For the complete understanding of
the position taken by the learned
counsel for the. Attorney-G General,
his brief is here given In full. Tie
printing of the brief here is omitted
for want of space.
By THE COURT.
The proposition of the counsel for
the Acknowledgement that at the
common law the Acknowledgement of
England and of States which have
adopted this part of the common
law has the right upon his sole res
possibility to enter 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 sta.
tutes and in the precedents estab.
lished by decisions of our Supreme
Court, in which it is allowed, Sec
ton 1923 of the Civil Code, "to cite
and adopt the reasonings and prin
ciples of the admiralty maritime anC
common law Of other countries anC
also of the Roman or civil law so fal
as the same may be founded in jus
tice and not in conflict with the law!
and customs of this kingdom" Thi:
doctrine has !been frequently ex
pressed by the Supreme Court
This part of the common law ha
not been enacted nor adopted here
nor could duty and power of thu
Acknowledgement be imposed or as
sumed OF Withdrawn upon consider
alton of what was the law of othe
countries.
The uniform practice of the Su
preme Court and of the Circui
Courts has been that the Attorney
ney-General by himself or his de
putty, when desiring to mol. pros.
case after indictment found, ask
leave of the Court that it may be s.
entered, giving the Court or the pre-
siding justice some satisfactory rea
sons therefor. These reasons ar
not always given publicly in til
Court. They are frequently pre-
sented TO the Judge in his office, ant
upon the motion being made i
Court, the Court in response some
times states the reason given, an
sometimes merely says that for sa
tisfactory reason given the mol. pros
may be entered. / state this to b
the custom of the Court upon IN
own knowledge as a Justice 70
twelve years and as deputy of tn
Acknowledgement for four years an
upon inquiry of my brethren on tn
Bench, two of whom have held til
office of Accomplishment, and VIII
say that the practice has been un
formly as 1 have stated it.
Our statute of Criminal Procedur
(Act of &c, G. L. p. $3.50 provide
for tic discharge without prosecl
ton of persons imprisoned undo
committal for trial for any offens'
by the Acknowledgements grantin
q certificate to the Justices or Ju
tice of the Supreme Court that I
declines to present an indictment
the specified case, whereupon I'll
Justice or Justices shall theregpo
issue to the Marshal warrant of di
charge Of such person from custod.
This statute was enacted in 1877,
and as it provides only this metho
of discharge upon the sole respol
sibility and authority of the Alto
ney, General, think it may be il
ferred that the existing practice WI
not intended by the Legislature
be varied in other respects.
The Court has control over col
tinuance of case by Section "a
the Criminal Procedure Act of 1877
IF the Court before which any pc
son is indicted shall, upon the app
cation of such person or otherwis
he of opininn that ha OuUht In