The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-06-05

Held: If the Court is entirely with
out jurisdiction the order called in ques
ton Is void and the petitioner cannot fol
the reason alleged be precluded from
awaiting himself of it,
Finally, jurisdiction depends not only
upon having the person before the cour
and the class of cases within the power
of the Court but also that the subject
matter that Is to say the acts of the
party sought to be imprisoned shall il
law constitute contempts.
H.
The petitioner could not be compelled
TO reveal his clients name against tn.
clients consent and after the client haG
expressly refused to permit the petition
er TO make his name known.
The facts are undisputed in this case
as Well as the fact that to make known
the name OF the client would do harm
TO his business interests.
In all the cases that / have seen Oh
heard of on the subject of stating the
clients name where the Court required
1t to be done, it appears distinctly eth
er that such statement was required IL
order to enable the Court to adjudicatt
in case, or else that the name was
otherwise shown and mentioning it coult
do no harm
The only object of the rule is to pre-
ciude any harm resulting to a client
from his counsel stating anything about
him which he has learned in his profes
sionai character.
the Grand Jury no doubt answered a,
follows, viz:
Q. Do you know about any bribery?
A No
Q. Have you heard?
A Yes.
Q. What have you heard?
A. That a certain person paid an Off
Ger of the Senate money and was ap.
preached by legislators on the subject.
Q. Who was that person?
A. My client and L cannot make
known his name because 1 learned it il
professional conduct. 1 learned these
things from him in professional conf.
dence
There was no volunteering of evidence
by the petitioner. The foregoing form OF
question and answer does not appear In
the report made by the foreman of the
Grand Jury, but it cannot be doubted
that such was actually the way of it
for that would be the natural and ordi-
nary way The petitioner had no right
to keep from the Grand Jury, according
to the view of the Circuit Judge, any
information because it was hearsay, but
from whom he heard it, being a client
he was not required to testify.
IF the Court does set forth in the
commitment the facts upon which 1t pro
ceeds, the tribunal vested with revisory
powers may discharge the party on ha
beas corpus if the facts stated do not
amount to contempt Spell. Eek. Rel.
1913 and cases there cited.
III.
AS to Directing sooner to the alleged
Grand Jury.
The rule requiring this TO be done is
based On the improperly of a party
taking inconsistent positions. as would
be done by his going to trial before "a
jury in order to run his chance of al
acquittal, and then saying that. the jury
was illegal to which he had appealed. o.
in pleading not guilty to an indictment
which he afterwards claims is indict
ment. But the petitioner had no oppor
tunity to challenge the Grand Jury, ant
was not held on an indictment. By omit
ting to object to the Grand jury in hi!
showing cause why he should not be i'm
prisoned, and by averring his readiness
to testify as far as was legal, he canno
be deemed to have waived this objection
to the lawfulness of the Grand Jury. L
does not appear that he then knew tina
it was an unlawful body.
A panel which is void alb initio may b.
objected to at any time. 10 Encyc. Pl
& Pr. 402, citing 100 U. s., 65; 40 H.. 581
and CT H.. 393 394-
The enclosed memorandum is also re
ferred to.
Respectfully submitted.
ALFRED S. HARTWEL.L-
Honolulu. June 8, 1901.
In the. Supreme Court of the Territor.
of Hawaii.
In the Matter of L. a. Thurston for ;
Writ of Habeas Corpus
MEMORANDUM OF KINNEY, BAL
LOU & MCLANAHAN OF COUN-
Sell FOR PETITIONER.
Where an alleged contempt consists b
a refusal to testify before body claim
ing to be Grand Jury, the Court, upol
habeas corpus, may inquire as t.
whether such body is Grand Jury a
least to the extent of ascertainint
whether in drawing 1t there was an.
colorado attempt to follow the statute
in force.
The question as TO how far the validit,
of a Grand Jury can be attacked is on
upon which in the language of the Fed
eral Judge, the authorities ARE in ute
confusion" g Fed, 283) And case
range from that of the Pennsylvania
Court which decided that the substantial
rights of a defendant were infringed be
cause there was one seal instead of tire
on the box from which the jury name
were drawn Drown VS.. Com. 73 Pa, a
page 321), to the California case cited b.
respondent, which holds that any bod.
of men recognized as a Grand Jury b.
the Court which drew it, is a Gran'
Jury de facto.
The general rule, however, is laid dow
by a number of authorities, although
they differ widely in it's application. Tina
rule is that mere technicalities in tn
drawing, of a Grand Jury will not rem
der it an illegal body. but any substan
tiaI variation from the law will rende
the legality of the Grand Jury open t
attack. ST VS.. Brandt, IL Iowa, 5sS
State VS. Beckley, 70 Iowa, 1858; Chas
ads. ST. 20 n. J, Law, 21S.
For a case in which this rule was ap
piled under similar circumstances to tn
case at bar and the remarks of tn
Court upon the remarks of Judge at
-. H.. ~ ~