The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-01-04

motion to quash,
Held, the Attorney-General was not re-
moved, or his resignation made COM
plete by acceptance until his successor
was appointed on the 9Th November.
Therefore the acts of his deputy on the
It'll were valid.
Motion to quash overruled.
OPINION OF THE COURT PER JUDD,
The defendants were indicted for
the crime Of murder on the 7th No
vember last before the Circuit Court
of the Third Judicial Circuit.
The following motion to quash
the indictment was made, and the
question thereby raised was reserved
to the full Court by Presiding Justice
Dole:
And now come the said defendants
John Costa and Anna Costa, in their
own proper persons, and move the
Court here that the indictment pre-
sented against them this day in the
above entitled cause, be quashed, and
in support of said motion, said de-
PENDANTS allege the following facts,
viz:
LIST. That said indictment is not
signed or presented by an Attorney
General of the Kingdom duly, legally
and constitutionally appointed to and
holding Office at the date of the sign
ing of the same and its presentment
against these defendants.
I'd. That at the time when said in
dictment was signed and presented
by w. Austin Whiting, Esquire, as
and for the deputy of Charles Creigh-
ton, Esquire, therein described as the
Attorney General of the Kingdom,
he, the said Charles Creighton, was
not the Attorney General of the
Kingdom, and was not constitution
ally holding the said Office of Attor-
ney-General, OF constitutionally or
legally discharging its duties and
functions.
Sd. That at the date of his said
signature to and presentation of said
indictment, as and for such deputy
as aforesaid, he, the said w. Austin
Whiting, was not the deputy legally
and constitutionally appointed, and
holding place and Office as such de-
putty of the Attorney General of the
Kingdom.
4th. That the finding of true bill
against these defendants upon such
Indictment so as aforesaid, unsigned
by and not presented by the Attorney
General of the Kingdom, Or by the
deputy of such Attorney General,
constitutionally and legally holding
office as such at the time of such
signing and presentation, was and is
irregular, invalid and void.
This motion is based upon the
records and files berein, upon the
commission under which said w.
Austin Whiting purports and pur-
ported to act as and to be the deputy
Of the Attorney General of the King
dom in this behalf, upon the affidavit
Of @. W. Ashford hereto annexed and
made part hereof, and upon events
which have occurred in regard to Her
Maiesty's Cabinet since noon on the
first day of November, instant, of
which the Court here is respectfully
asked to take judicial notice.
The essential facts as appear by
the afhdavits filed are as follows:
On the LIST day of November, 1892,
Her Majesty appointed and commits
stoned q Cabinet in which Mr.. Chas.
Creighton was Attorney General. At
11:30 AM. of that day Mr.. Creighton
commissioned w. Austin Whiting as
his deputy for the Third judicial
Circuit, and Mr.. Whiting proceeded
by steamer at 2:30 O'Clock in the
afternoon of that day to the island OF
Hawaii, where the November term of
the Circuit Court OF the Third Judi
cial Circuit was to be holden in pur-
suance of the statute. At about 1890
p. N. of the said LIST of November, the
Legislature passed a resolution of
want of confidence in the said Cab
met. Whereupon the Cabinet,
through their head Mr.. w. FL. Corn
well, rendered their designations to
the Queen. The affidavit of Mr..
Creighton is to the effect that their
designations were not accepted by
the Queen until the Sth of November,
when their successors were appoint
ed, and MIR. Creighton says he con-
tinued to perform the duties of
Attorney General until that date.
The indictment in question was
signed .:'Charles Creighton, Attorney
General, by his deputy, w. Austin
Whiting"
Mr.. G. W. Ashford, counsel for the
defendants, commended that the pas
sage by the Legislature of resolu-
ton of want of confidence in a
Cabinet, more especially when fol-
lowed by resignation Of the Cabinet,
terminated their official career, and
d request by the Queen to the Cabinet
to hold their offices until their sue.
cessors were appointed had no greater
effect than commissions ad interim,
would have had. Commissions of
this character were held by this
Court, in Reg. vs.. "a. F. Poor, s
Haw., to be, under the present
Constitution, invalid. Acceptance Of
the resignation is not essential to its
completeness. Mr.. Creighton re-
assumed the duties of his Office,
whereas no new commission was
issued to him. Consequently his
appointment of Mr.. Whiting as his
deputy was invalid.
Attorney-G General Brown per con-
ira.
BY THE COURT.
The Constitution ARTICLE ~ pre-