The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-02-09

OPINION OF THE COURT BY JUDD, c. J.
On the Sd of September, 1894, at
Keel, South Kona, Hawaii, two par
ties, John Gaspar and d. n. KahauIe-
Ito, claimed adversely to each other
certain coffee still unbarvested /; the
former sent his men to gather it: The
latter with his friends warned them
not to take it and, they persisting,
sWore out warrants Of arrest against
all the above named defendants and
others for larceny Of said coffee. The
execution Of the warrants was resist
ed q fracas ensued In which one off,
Ger, Kailihiwa, was severely injured
and q japanese was shot aud killed.
ALI the above named japanese de.
PENDANTS were charged in the District
Court Of South Kona with the offsnse
of assault and battery on certain police
officers with intent to resist, hinder
and obstruct them in the discharge of
their duty as such officers. They were
committed for trial. John Gaspar
was examined and committed for the
offense of instigating the said Japan
csc to commit the said offense.
The Circuit Court Third Circuit sat
at North Kohala on the Sd October
last aud was adjourned to the eth.
The Acknowledgement at Kohala de-
clined to indict or prosecute John Gas
par on the charge upon which he was
committed, and the Circuit Judge pre-
siding ordered his discharge from Gus
t0dy. Gaspar was Immediately re-
arrested upon warrant OF the District
Court Of North Kohala, on a charge
OF being accessory before the fact to
the oftense Of assault and battery by
the said japanese upon public officers
with intent to resist them in the exer-
else of their duty. Gaspar waived
examination and was duly committed
for trial at the Circuit Court then sit
ting. The above mentioned Japanese
were indicted for the aforesaid assault
and battery together with Gaspar as
an accessory before the fact. Gaspar |
demurred to the Indictment and also |
nled Plea In bar" setting out the |
previous arraignment and committal |
and claiming that the declination to |
prosecute upon it, followed by dis
charge, was an acquittal therefrom,
the two offenses being Identical in
aw and fact. Both these pleas being
,verruledN the Japanese defendants
hen pleaded not guilty. Gaspar re-
using to plead, the Court ordered the
'lea of not guilty to be entered for
Inn This is statutory and this course
vas approved by this Court in Her
n conviction.
We observe, in considering Gaspar's
lea, that the statute, Compiled Laws
p.338-9, authorizes the Attorney Gen.
raj TO grant q certificate that he de-
lines to prosecute any person COM
nitted for trial, addressed to the
Judges OF the Supreme Court or any
ne OF them, who shall order the dis
barge by warrant to the Marshal or
a1lor who has the person in custody.
he Attorney-General followed this
purse and the Circuit Judge signed
ne warrant Of discharge. It would
,em as II this enactment was only
itended to apply to prisoners before
ld1ctment and not necessarily during
'rm. The power is distinctly given
the Acknowledgement to decline to
resent an indictment. The warrant
the Judge would follow as matter /
course, the duty being mandatory
40 not discretionary. The law has ]
ot Deem amended so as to give this 6
lthortty to Circuit Judges who t
wv preside at jury trials-but, I
'ant1ng that the Circuit Judge
Vi no statutory authority to '
yn the warrant Of discharge, the de- 7
nation OF the Aforementioned to !
eeent an Indictment still stands. We
nsider that it has the same effect as s
nolle prosequi entered after indict- 4
ent with the consent Of Court. We
1st remember that the failure to I
0secute or a nolle prosequi is not as n
IuittaI. 1t was so held in Rex V. i
amer, 8 Haw. 3S9. n