The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1893-07-17
June Term, 1893,

The Provisional Government of the
Hawaiian Islands vs., Walter G..
Smith. Before Judd, c. J., Bicker-
ton and FreaL J. J.
There is no appeal to the Supreme
Court from decision of a District
Magistrate upon demurrer to a charge
against defendant in his examination
for an offense cognizable before a jury.
OPINION OF THE COURT BY JUDD, C. j.
The defendant was charged with libel
in the District Court Of Honolulu He
filed demurrer to the charge which,
after argument, was oyerruled by the
magistrate He did not plead, nor
was there any evidence taken, nor did
the magistrate commit him for trial or
discharge him But an appeal was i'm
Imediattly taken to the Supreme Court
from the ruling Of the magistrate against
the demurrer. When the matter came
up before us, attention of counsel was
called by the Court to the novelty Of the
proceeding, but as the counsel for the
prosecution made no objection to the
procedure, stating, however, that he
was not thereby to be considered as
approving of the course taken, the
Court heard arguments on the merits
of the demurrer
We think now that it was irregular,
and since it might be considered
precedent, we wish now to prevent the
initiation OF practice that will lead to
great embarrassment.
The proceeding in District Courts
where a party is charged with an ofense
cognizable before a jury is not strictly
a trial" 1t is a preliminary examina-
ton, somewhat analogous to the pro.
ceedings Of a grand jury in other juris-
dictions, The defendant is not re-
quired to plead to the charge, though
he often does so. He is not put on
defense and he may waive the exami
nation altogether, or he may proceed
with his defense. All that the statute
requires is that the magistrate shall
Consider whether there is any probable
cause to believe that a jury would,
upon the evidence adduced, convict
the accused of the offense of which he
is charged" and he must either release
the prisoner or commit him for trial
at the Circuit Court There are but
these two alternatives, and in their
very nature there is no appeal from
either decision. Every legal objection
available to the defendant can be pre-
scented in the District Court, and if the
result of those proceedings should be
a commitment they are again available
to the defendant in the court where his
trial is 10 take place.
We do not find that the present
statute concerning appeals (Sec. 6S,
chap lvii, of the Act to Reorganize the
Judiciary, has enlarged the right of
appeal. Formerly by Sec, 1906 OF
the Civil Code, party deeming him,
self aggrieved by the decision" of a
District Magistrate, could appeal,
Now the statute above cited allows
appeals from "al decisions" But
neither of these statutes allows appeals
from interlccutory or provisional orders,
rulings or decisions of District Magis
Itrate.
We therefore decline to assume iuris-
diction over this appeal and dismiss
the same, and send the case back to
the District Court of Honolulu for
further proceedings.
+. NJ. Hatch, for prosecution; A. F.
Hartwell, for defendant.
A SIMILAR CONSTRUCTION.
In the case of the Provisional Gov.
eminent VS.. An Tn, the Court decides
there is no appeal to the Supreme
Court from a decision Of a district
magistrate denying a motion to dis
charge the defendant charged with an
offense within the summary jurisdiction
of the Court--no final judgment hay
ing been rendered.
The defendant in this case was
charged, in the District Court of Homo
lulu, with the offense of conducting a
lottery, which is in the summary juris
diction of that court. He plead moi
guilty and then moved to be discharged
on the ground that the law under which
he was charged was not in force wher
the act was alleged to have been com
mitted. The magistrate denied the
motion, and without further proceed
ings the defendant appealed to this
ICOurt