The Hawaiian gazette., 1893-01-03
OPINION OF THE COURT PER JUDD,
Motion TO quash overruled.

OPINION OF THE COURT PER JUDD,
The defendants were indicted for
the crime of murder on the 18th 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, or 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
invalid and void.
This motion is based upon the
records and files herein, 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 G. W. Ashford hereto annexed and
made a part hereof, and upon events
which have occurred in regard to Her
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 sfidavits filed are as follows:
On the LIST day of November, 1892, /
Her Majesty appointed and commits
stoned Cabinet in which Mr.. Chas.
Creighton was Attorney General. At
IL 80 AN. of that day Mr. Creighton J
commissioned W. Austin Whiting as
his deputy for the Third Judicial
Circuit, and Mr.. Whiting proceeded
1y steamer at 2:30 O'Clock in the
afternoon of that day to the island of
Hawaii, where the November term of
he Circuit Court of the Third Judi
;ial Circuit was to be holden in pur-
uance of the statute. At about 1890
). M. of the said LIST of November, the
legislature passed a resolution of
want of confidence in the said Cab
net Whereupon the Cabinet,
trough their head Mr.. W. II. Corn
veil, rendered their designations to
he Queen. The affidavit of Mr..
is to the effect that their
esignations were not accepted by
he Queen until the 9Th of November,
7hen their successors were appoint
d, and Mr. Creighton says he con-
inued to perform the duties of
General until that date.
The Indictment in question was
igned Charles Creighton, Attorney
ieneral, by his deputy, W. Austin
Mr.. G. W. Ashford, counsel for the
efendants, contended that the pas
age by the Legislature of a resolu-
on of want of confidence in a
more especially when fol-
'wed by resignation of the Cabinet,
srminated their official career, and {
request by the Queen to the Cabinet {
} hold their Offices until their sue ]
essors were appointed had no greater