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

Il regular. he was Ec-dLICo CCN W va
amt of the District Magistrate oi
North KohaIa, who had Jurisdiction
upon the sworn Information Of the At
torney. General. He waived examin-
alton and was committed upon the
charge made. This is the usual course
and it has been followed for years in
case where the facts being essentially
the same the prosecuting officer desires
to change the form Of the charge. This
is a far better course to pursue than to
present an indictment for q different
offense than that upon which the de-
PENDANT was originally charged and
committed. We doubt IL this latter
course could be legally followed. The
original offense charged against Gas
par was "instgating the Japanese to
commit assault and battery on the Of
ficers," etc. But section z, Chap. A,
Penal Code, prescribes that "The in
stieation is merged in the offense
committed in pursuance thereof, when
| the offense is committed in such q
| manner that the instigatbr Is guilty
thereof, by reason Of his being an ac-
cessory before the fact or otherwise"
| In our case the facts in the knowledge
of the prosecution were that the Of
tense Of assault and battery on the of
! ficers had been committed in pursu-
ance of Gaspar's instigation and that
I
( sault and battery was committed. He,
therefore, was an accessory before the
fact, in accordance with the definition
given in Chap. 5, Penal Code, Sec. 2.
But suppose the proceedings Of the
| Attorney-Ge and the Circuit
Judge on the original charge were in
| efectual to properly dispose of the
same, we cannot see how the tendency
of another charge against the defend
Il hor 70 oN1h NJ
charge and indictment, the regularity
of which is not called in question.
In 10 sense can the trial of Gaspar as
an accessory before the fact be con-
sidered "mistrial" on account of al
legged Irregularities preceding the
same.
We override this exception.
Although the japanese defendants
| and John Gaspar were tried jointly,
counsel and the Circuit Judge allowed
two bills of exceptions. We shall
consider the several points made in
both bills, treating them as one. At
the trial two papers were offered in
evidence purporting to be the war
rants for the arrest of defendants and
others, under which the officers were
acting at the time Of the assault. They
were objected to until proven to have
D60u IsSucQ ny Tie
of South KOna on the Sd September,
1894, and that he was regularly COM
missioned and legally acting on that
date. The presiding judge said that
"he had official knowledge that Thos.
n. Wright was commissioned as Dis
trict Magistrate of s. Kona on the LIST
September. 1894, for two years." The
warrants were admitted in evidence.
Further objections were made to
-
''Thos. III. Wright, District Magis-
trate of South Kona, Island of Ha-
waii." They were on the printed !
form furnished by the Judiciary De- |
partmeDt to the Magistrates aud fol- |
low on the same page the sworn infor- |
nation upon which the warrants
issue. The informations are signed by |
ID. II. Kahaulelio, and bear the state
mentI "S1gned and sworn to before
me this Sd day OF September, 1894.
T. II. Wright, District Magistrate of |
South Kona, Island of Hawaii
We find from the evidence (tran-
script, Up. 101, 125 and 1881 that Mr..
Wright was exercising the functions
OF District Magistrate of South Kona
at the time of his signing the war
rants. A judge de facto is judge de
jure to all parties>except the State.
Wharton's Grim. Ev., Sec. 1874.
Coyle ". Commonwealth, 104 Pa.
State, III.
WaIcOtt v. Wells, "a Pac. r., 1857
(Nevada).
1t was not necessary that Mr..
Wright's commission should be pro-
duced. State ". Roberts, 80 n. II,
492, Or. Ev., Sec. 80. Moreover, the
presiding Judges statement, that he
took judicial knowledge of the fact was
sufficient, and it was not essential
that he should take the stand and re-
cite under oath the facts from which
this knowledge was derived.
State ". Wright, 16 r. l., SIS.
Hancock v. Town, Of Worcester, I6
VT, 1O6.
Graham ". Anderson, AZ Ill, SIS.
We find nothing to modify these
rules OF law in the fact that by the
Constitution OF the Republic of Ha-
wall all Commissions were vacated on
the LIST September, 1894. The pre-
exists that the Executive
performed its duty and appointed a {
District Magistrate for South Kona
IN or before that date. I
This exception is overruled.
Objection was made to the warrants
N the ground that the names Of the I
'ersons to be arrested were not re-
'eated in the body of the warrants, '
'ut were referred to as ga. B. ct al, q
harged with the offense of larceny in d
he third degree as fully set forth
bove, and when found to bring their @
odies before the District Magistrate t
I South Kona, etc." AS before stated, v
he warrants were preceded upon the L
anne paper by the sworn information
which named all the persons charged t
nth the ofense. Apparently there {
1as not room in the printed form Of C
he warrants for the insertion of all C
he names Of the persons to be arrest
d, and we see no possible objection to d
eferring in the warrants to the COM &
latnt for the rest of the names of the j:
ersons to be arrested. Il
In Commonwealth v. Dean, 9 GRAY, "
81, Z. }. Shaw said that "where q Il
aper was annexed and definitely re- b