The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-11-09

presented without REORGANIZATION be
fore the committing magistrate.
jeopardy does not attach until Jury has
been Impanelled and sworn, nor unless
the indictment Is valid.
Failure to prosecute upon an invalid IN
dictment, or at a term Of court during
which person is committed By "A mag
Istrate, does not operate as an acqUittaI.
Where q person is committed by a IN sgis-
trate during one term Of the trial court
the term next succeeding the commit
ment IS the next term OF the court.
Former acquittal Is not a proper ground for
motion TO quash-
A plea Of former acquittal should show
That the same person was acquitted OF
the same OHense in d court of COmpe-
tent Jurisdiction upon a valid indict-
ment, and should be supported by
proper evidence.
OPINION OF THE COURT BY FREAR, J.
The defendant was committed by
the Police Justice of Honolulu on the
9TH day OF July, 1892, for trial before
the next term of the Supreme Court.
At that date the said Court was ia
session, holding the regular July
term. On July 18th, five indictments
We're found against defendant and
presented to the Court. On July 80,
1892, the last day of the term, the
defendant filed motion to quash the
indictments on the ground that they
had not been presented by an officer
having any legal authority to present
the same, the indictments having
been signed by Ii. A Widemann, as
Attorney General al interim by his
deputy, Chas. Creighton. The ques-
ton was reserved for the Supreme
Court in Banco. The motion was
sustained by decision of that Court
filed October ID, 1892. At that date
the regular term of the Supreme
Court was being held. On the 28th
OF October, 1892, five indictments
were presented and the defendant
was allowed until the January term,
1893, to plead. La the meantime the
new Judiciary Act came into force
and the said January term was not
held, but by law all cases returnable
at that term went on the calender for |
the February term, 1893, of the Cir |
cult Court of the First Circuit. At |
that term these cases were by order |
of the Court continued until the May |
term, at which term the defendant |
demurred to the indictments. The |
above statement of facts is taken
from the decision of this Court rem
dered In these cases July %, 1893.
The demurrer was overruled by the
Circuit Court in a decision filed June
ID, 1893. Exceptions were taken to
the ruling of the Circuit Court, but
this Court, for reasons stated in its
decision above referred to, declined
to entertain the exceptions. 1t would
seem from the briefs OF counsel that
the defendant was tried on one of the
-. 90 81 20 /
of the Circuit Court, the trial result
ing In the acquittal of the defendant
on the 9th of said month. On the
18th of the same month the defendant
moved to quash the remaining four
indictments, and the questions raised
by these motions were reserved by
the Circuit Court for the decision of
the Supreme Court.
The reasons assigned for Quashing
the indictments Will be taken up In
their order.
First: - That all proceedings
which were commenced before the
Police Judge OF Honolulu as a COM
hitting magistrate IL July, 1892,
came to an end with the decision of
the Supreme Court sustaining the
motion to gu ,h made at the July
|
The Court, in allowing the motion
to quash, held in effect that the in
dictments were void,-because pre-
scented by no officer h-ving authority
to present the same. This being so, :
the case stood as il no indictments
had been presented. The proceed
iugs upon those particular indict-
ments came to an end; but, being
utilities, they could not vitiate other
proceedings which were properly {
taken.
Second: That defendant having
had one indictment . presented
against him at said July term of the
Supreme Court was thereby placed {
in jeopardy and cannot therefore be
so placed again" II
Oar Constitution does not contain S
the provision found in the constitu- {
tions OF most of the United States, {
that no perscn shall be put twice In l
jeopardy for the same offense, but 1t
provides, as IS the case with mum /
of the constitutions of the United I
States. that mo psrson shall be re- l
ouired to answer again for an ptfense. |
of which he mas been duly convicted l
or of which he has been duly acquit- t
ted" 1t Is unnecessary for us to
consider whether there IS any sub a
difference between these pro- S
visions. for il is well settled that a /
person is not put in jeopardy by the S
of an indictment
which Is so defective that no I
valid Judgment can be rendered |
upon it, nor until a jury has been /
impanelled and sworn Cooley,
Const. Linn. 18th Ed1, page 399; IL
Am. & Eng. Encyc., PIP. 926, $50, 933. :
In the present case the quashed in t
dictments were utterly void, and no
Jury was impanelled or sworn. S
Third :-That the failure TO prose t
cute upon the indictment found at f
said term operates as an acquiLtal Of c
the accused" t
The indictments being void, failure
to prosecute upon them could not r
operate as an acquittal. There could i
be no legal prosecution upon them /
Further, the statute (Sec. 3, CHI Nj, c
Laws of 1876 provides that "the t