The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1890-12-30

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 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, as 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. 1t 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 so 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 (the magistrate) for examina-
ton"
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 is
definite one. Our statute pre-
scribes in Section 6 of Chapter 49 of
the Penal Code the method of ar
rest. eff the officer have a warrant
he must show it" x = if the
arrest is made without warrant he
should give the party arrested
clearly to understand for what cause
he undertakes to make the arrest,
and must require him to submit and
accompany him to the Jail or magis-
trate. This done the arrest is COM
plete." The party then becomes
lawful prisoner in detention, and If
by force or guile he gets away it is
an escape. A person whom the
officer has under suspicion may be
watched and kept under observation
if the officer is able to do so, but it
is not an escape if he departs from
view. There is no provision for
legally holding a person in deten-
ton until he may or may not be ar
rested hence no departure is an
escape.
The argument is made that there
would be practical difficulty in
securing and often in Identifying
the possessor of opium found by
search warrants, if the suspected
person could not be detained pend
ing the search. This is the argu-
nae1atum alb incOnUenienti which does not
prevail in the construction of penal
statutes.
The exception is sustained.
Deputy Attorney General Creigh-
ton for the Crown; F. NJ Hatch for
defendant.
Honolulu, Nov. 25, 1890.