The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-08-03
oprg1ox OF THE COURT BY BIcKERToy, J.

oPISIoS OF TIKI COURT By BIcKERToS, J.
The defendant was committed by
the Police Justice Of Honolulu on
the 7th day Of July, 1892, for trial
before the next term of the Supreme
Court. At that date the said Court
was IN session, holding the regular
July term. On July 10Th. FIVE indict-
nents were found against defendant
and presented to the Court. On July
Both, 1892, the last day of the term,
the defendant fled a 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 H. A. Wide
mann as Attorney General ad interim
by his deputy, Chas. Creighton. The
question was reserved for the Su-
prsrne Court in Banco The motion
was sustained by decision of that
Conrt fled October 10TH, 1892. At
that date the regular term OF the SUI
Dreme Court was being held. On the
28th Of October, 1892, five indict-
rnents were presented and the de-
PENDANT was allowed until the Jsnu-
airy term, 1898, to plead In the
meantime the new Judiciary Act
came into force and the eaid January
term was not held, but by law all
cases returnable at that term went on
the calendar for the February term,
1893, Of the Circuit 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 suffi-
cheney Of the indictment, counsel
contendipg that the defendant had
been put Ia jeopardy by the indict-
laents presented by Attorney General
WidemanD, and that there had been
failure to prosecute. Whereupon
the Court fled It's decision on the
18th day of June, 1893, the term
having expired by limitation on the
27sh day of May, 1893, in which it
says:
1T seems to me that the demurrer
does not raise the points contended
for on the part of the defendant, it
being the province Of a demurrer to
raise points of law upon the plead
ings and not upon the record, and for
Oyerruled. If the points contended
for by the defendant were properly
before the Court it does not seem to
ne that the records show such a
state of facts as to sustain the defend
ants contention"
The defendant then excepted to
this ruling, and the matter now comes
here on a duty allowed bill OF excep-
tons.
The question as to the trial being
suspended while defendants excep-
tons were pending and undecided,
Is discussed and passed upon In the
decision In the case Of the Provisional
government vs. g. 4. Herring, filed
July 9th, 1893. The language of
the Court there is as follows:
The demurrer having been over
ruled and excepted to, the defendant
was asked to plead, but protested
against his being required to do 50
while his exceptions to the over
ruling Of the demurrer were pending
and undecided, and, on this objection
being overruled, defendant excepted.
Exceptions TO the everything OF de
murrer have never formally been
held to suspend the trial, though in
stances may be cited where this
Court has entertained such excep-
lions before trial on the merits. II
will be found that the prosecution
has In such cases either consented to
this procedure or it has been unno-
ticed by the Court. The general
course has been to have the excep
tions noted and proceed with the
trial, and this course, as We have re
marked In several cases recently deci
ded. Prov. Govt VS.. Smith, Prov.Gov'
rs. Al In, and Brown vs. Carvalho,
IS the best course and We adhere tc
II. We see no error In the Courts
ordering the trial to proceed"
In this case the Court could not
have ordered the case to proceed, as
the term had closed when the de
cision everything the demurrer was
fled, so the case stands on the calen
dar for trial at the next August term
when the Court may order the trial
to proceed, and should there be g
conviction then the exceptions tC
overriding the demurrer comes NJ
with any other exceptions taken and
allowed, as was done In the Herring
case. This holding cannot work any
uar4Snip on parties, woe OectlOH -
OF the Judiciary Act OF 1892, which
Is as follows:
Whenever any question Of law
shall arise In any trial or other pro
ceedings before a Circuit Court, the
presiding Judge may reserve the
same for the consideration Of the
Supreme Court; and in such case
shall report the cause, or so much
thereof as may be necessary to full
understanding of the questions, tc
the Supreme Court"
This authority is clearly discre
tionary with the Judge and we are
Of the opinion that it is also discre
tionary with the Court to order the
trial suspended where the question is
one of great Importance and may bS
decisive of the case, or to order the
trial to proceed. Section 81 OF the
Act gives this Court Jurisdiction tC
hear and determine ali questions Of
law reserved by any Circuit Court OIL
Judge. We therefore have to de
cline TO entertain Iefap1ont,, ovoo,D