The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1892-05-26

10 specify anu present an OlIenSc US
having been commltted by this de
PENDANT other than the offense Of
treason for which alone this defend
ant was arrested and held to answer.
SO. Wherefore this defendant
prays judgment that the charge here
in filed and presented as aforesaid
be dismissed, and that he he hence
discharged without day"
Mr.. Davidson read similar de-
murrer in behalf of Robt. w. Will
COX.
Mr.. Hartwell announced that de.
murrers of the same tenor had been
prepared in behalf Of the other de-
PENDANTS. The reading Of the de-
murrer in the remaining cases was
waived by consent.
Mr.. Creighton submitted that as
the Court was sitting as a commit.
ting magistrate, simply, a demurrer
was out of order. 1t was the same
as il the defendants were charged in
the Police Court.
Mr.. Hartwell argued, contrary, urg-
ing that the gravity of the case, to-
gether with the competence of Su-
preme Court Justice to entertain such
a demurrer, made it desirable that
the Court should decide on the de-
murrer. This country was an excep-
ton TO all countries under English
law, in having no grand jury TO de-
eide on the sutficiency of an indict-
ment.
Mr.. Creighton replied briefly, hold
ing that, If the prosecution chose, it
might have presented verbal charge.
The Court did not consider it was
competent for it to adjudicate on the
sutliciency or otherwise of the charge.
Its jurisdiction here was to decide
whether defendants should be COM
United for trial to jury ON the
charge presented.
Mr.. Hartwell moved that the Court
reserve the point of its compete ncy
to decide the demurrer for the full
bench.
Acknowledgement Whiting opposed
the motion, claiming the only matter
for the Court to decide was whether
defendants should be committed for
trial.
His Honor could not see that he
had the right, as committing magis-
trate, to reserve question for the
full bench. He would, however, hear
argument on the demurrer.
Mr.. Hartwel proceeded to argue
for the demurrer and discharge of
the defendants. He quoted authori-
ties to show that an overt act is ne
cessary to constitute the offense of
treason. No amount of conspiring
or plotting would make treason, there
must be actual war made against the
sovereign or government. He quoted
The law against unlawful conspiracy
for which the penalty is ten years
Imprisonment.
The Court asked if this was not a
point to be brought up at the trial.
! Mr.. Hartwell replied that defend
ants had right to have the Charge
specified to them, as treason was not
bailable, while conspiracy to commit
treason was, and the penalty of one
was death, while that of the other
was ten years. imprisonment. The
Government AYERS all it can find
against the prisoners, and he submit
ted that the charge as presented does
not show treason. The offenses
charged did not constitute treason
here or in the United States, and
only did SO in England under
special statute he had quoted.
There was no constructive treason il
this country, where no criminal con-
viction could be had at common law
The charge must not only specify
the statutory offense, but it mus
specify the overt act making treason
This charge said they plotted ant
in pursuance of their plotting did as
semble to plot. If that was not rea
soning in circle he did not know
what was. 1t ended where it started
They plotted and they plotted! The
, only overt act alleged is that they
assembled TO plot in pursuance o
, their plotting. If it was alleged tina
, they levied war it would have TO b.
shown that they employed forces. l
} was not enough to charge them will
having attempted TO commit this grea
crime, as the Court had decided il
, the case Of Ho Fon in the 1889 matter
These defendants could not be hell
r for trial on any other charge thai
that of treason for which they wer
arrested.
t The Court asked If counsel was t
be understood as saying that plotting
I was one offense and levying wa
another.
Mr.. Hartwell replied he mean
! nothing OF the kind. Plotting t.
: destroy the Queen was treason an
Y levying war was treason, but al
+. tempting to commit treason was nc
r treason. There was no law in thi
8 country making mere words treason
n He quoted Judge Story's views on tres
son III which il was held that even
y charge of treason was so opprobrou
: as TO make its subject distrusted an
4 hated. In reply to the Court, cour
/ l. ,I..,N l.. L., Il l.. L.