The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1890-12-27

OPINION OF THE COURT BY M'CULLY, J.
The defendant was charged under
Section 3 of Chapter 20 of the Penal
Code with the offense of escaping
from lawful custody. The section
reads
Whoever, being a prisoner law
fully detained in the custody OF any
officer or any other person author
lied by law to detain such prisoner,
in any other case than those pro-
vided for in the preceding sections,
escapes, shall be punished by i'm
prisonment at hard labor not more
than three months, and by fine not
exceeding ten dollars"
A search warrant had been issued
authorizing the search of the defen-
dant's premises for opium. The ex
ception states the case, rs follows:
During the trial the Court ruled
that the defendant was lawfully de-
tanned under the search warrant
issued. while the search was going
on in the case although no opium
had been found upon him or his
premises at that time, and dismissed
the appeal" The notes Of evidence
by the Circuit Judge and all ex-
hibits on file may be referred to as
part of the exceptions. The search
warrant follows the terms OF the
statute. It commands that search
be made of the premises Of Sin Fook
for sundry packages OF opium, and
that if the same or any part thereof
be found "that you bring the prop
erty 80 found together with the
body of the said Sin Fook, or other
the person in whose possession the
said property shall be found, before
me 1.-THE magistrate) for examina-
tion."
BY this it appears that there was
no authority to arrest the defendant
to take him before the magistrate
for examination unless the property
searched for, in this case, opium,
should be found and no opium was
found. What "lawful detention
then could he have been in from
which he could make an illegal
"escape 2" He must have been ar
rested before he could be detained
under arrest, and the contingency
upon which the officers had auth
ority to arrest had not occurred.
The state Of being under arrest il
. a definite one. Our statute pre-
scribes in Section of Chapter 40 o
the Penal Code the method of ar
rest. eff the officer have a warran
! he must show it" if tn,
arrest is made without warrant "h'
should give the party ARRESTED
clearly to understand for what caus
!. he undertakes to make the arres,
and must require him to submit an
accompany him to the Jail or magit
trate. This done the arrest is com
!. plete." The party then becomes
lawful prisoner in detention, and ]
by force or guile he gets away it
!, an escape. A person whom tn
officer has under suspicion may b
watched and kept under Observable
We if the officer is able to do so, but
is not an escape if he departs fro'
view. There is no provision IL
S legally holding person in deter
ton until he may Oh may not be a
rested ; hence no departure is q
escape.
The argument is made that thel
s. would be a practical difficulty
securing and often in identifyiI
8 the possessor of opium found /
10 search warrants, If the suspectt
- person could not be detained pen
= ing the search. This is the arg
meratvna alb inc1nuenienti which does n
prevail in the construction OF pen
statutes.
The exception is sustained.
Deputy Attorney General Creig
ton for the Crown; +. Nj. Hatch t
defendant.
-S Honolulu. Nov. 25. 1890.