The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1893-12-08
SPRECKELS LIBEL SUIT.
Bricts By Opposing Counsel which
Are BEFORE Judge Cooper OF the
Circuit Bench.

The famous Katzeniammer case is
now in the hands of Judge Cooper, who
will decide upon the points presented
in the following briefs by Attorneys
Hartwell, representing the editor of the
STAR, and Hatch, appearing for Claus
Spreckels
In the Circuit Court of the First Cir
cult November term, 1893. Provis.
ional Government VS.. Walter G.. Smith,
libel. Defendants points on proposed
amendment of indictment.
This Court having ruled that the de-
cision of the Supreme Court leaves it
discretionary with this Court whether
to allow the amendments or not, and
having intimated that it considers the
main question to be whether the pro-
posed amendments are in matters of
fact. which require to he substantated
by oath, or are matters of form, it is
material to note what are 1.-The possible
extrinsic facts" which the Supreme
Court has declared are mot properly
averred."
1t is observable that counsel for the
prosecution. while insisting that all de-
fects in the indictment, whether in sub
stance or form. may be amended (as |
understand the second point in his
brief. endeavors in his first point to
meet the views of the Court by declar-
ing that "the amendment offered is
only in matter of form
Defendants counsel claim that each
of those positions may be fully met and
overcome by careful examination of the
proposed amendments and of the stat
utes in point
1t is not mere form to aver that
the words concerning Claus Spreck-
els are "of and concerning the
facts above alleged" An innuendo
is not an averment of the fact,
and by familiar law it cannot be used
to enlarge the meaning of the aver
ments which are made. The defect in
the indictment of the non-averment of
what the Court call ''possible extrinsic
facts" is now sought to be applied by
averring those facts. 1t is immaterial
that the 'same meanings were originally
contained in the indictment as innuen-
does" According to the Supreme Court
those meanings could not be drawn
from the averments which were made
hence the Court declared that the indict-
ment was insufficient in law. 1t cannot
now correctly be said that such addi-
tional averments are no matter of sub
stance.
1t is equally immaterial whether the
amendments noted in paragraphs and
2 do or do not prejudice the defend
ant. He is entitled to meet face to face
any witnesses to substantiate aver
ments of any criminal act or conduct,
motives or meaning. This Court, as
decided by the Supreme Court, cannot
take judicial notice of criminal motives
or meaning which are matters of es-
sential substance without which the Of
fence is not committed.
2.-It may be admitted that all defects
apparent on the face of an indictment,
in order to avail in motion in arrest
of Judgment, must be taken advantage
of by demurrer or motion to quash but
il does not follow that the Court shall
or must order such defects to be 'forth-
with amended" On the contrary the
statute says that in such case the Court
"Hidy cause the indictment to be forth
with amended in such particular by
some officer of the Court or other per
son." implying that it may also not dc
so. The cases in which it may properly
do so are confined to matters of mere
form or clerical mistakes which the
Court can properly cause some officer OF
the Court or other person under its
orders and direction (as the Attorney.
General Is not to insert by way of
amendment.
3.-This case clearly comes under the
provision of Section 3, page 1873, Comp
Laws, in being "a failure to sustain the
Indictment upon the law involved,
which the statute declares ''shall oper
ate as an acquittal of the accused and
the Court shall order his discharge from
custody"
4.-The proposed new indictment Oh
amended Indictment was not during the
term signed by the Attorney Genera
or by any one else in his behalf. Strictly
it cannot be presented until so signed
AS it was not so signed during the term
how can it now in vacation be signed
and presented?
CITATIoNS.-In Com. VS.. Harrington
1870 Mass. %, the Court decided that the
statute is unconstitutional which pro
vides that in a complaint lit shall no
be necessary to allege previous con
victions." The Court say: st is pro
vided by Art. l2 of the Declaration o
Rights that no subject shall be held t.
answer for any crimes or offence unit
the same is fully and plainly, sub
stantialy and formally described t.
MN. Wnen statute imposes nlSne
penalty on IA third conviction it make
the form of conviction part of tn
description and character of the offenc
intended to be punished.
In like manner the averments whic
the Supreme Court has held to b
requisite in order to describe the offenc
of which this defendant is charge
require to be made i'm the indctmen
and to be substantiated at least b
prinld .facie evidence before the CON
hitting magistrate. The Attorney-Ger
eral cannot charge any offence in an in
dictment which has not been substan
TALLY shown and sworn to before tn
committing magistrate. In the presen
case the prosecuting counsel took tn
risk of the sufficiency of the indictmer
which was presented at the last Angus
term, and which the Supreme Court ha
held to be insufficient in law
Respectfully submitted,
ALFRED S. HARTwELL
Counsel for defendant
Dated December z, 1893.