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

public the fact that he was Mr.. Thurs
| tons client, the case is being carried
on by Mr.. Thurston on principle. to
| test the question of whether or not an
Iattorney is obliged to make known the
name of client against will of the lat
| ter, in connection with matter con-
Ifidentially communicated by the client
to the attorney. and whether or not the
attorney Is liable to fine or imprison
ment for contempt for protecting his
Iclient's interests by refusing to give his
name
| The second point involved is whether
or not the Humphreys Bailiff Law
allows the Circuit Court to Select the
grand jury. The validity of the grand
Jury is challenged. the claim being that
it is an Illegal body without power or
authority.
| The briefs presented by counsel are
published herewith:
! In the Supreme Court of the Territory
| of Hawaii
| In the Matter of l.. A. Thurston.
Points and Authorities for Respondent
| We contend:
| First That under the settled and uni
| form decisions of the courts, a Court is
the sole judge of contempts committed
| in its presence and that the only ques-
ton which can be inquired into by the
1 Appellate Court is whether or not the
lower Court had Jurisdiction.
Second. (a) That the Grand Jury is not
subject to attack in any case unless the
| advantage be taken in the first instance
| CD That In contempt proceedings before
| a Grand Jury, the Grand Jury is not sub
| ject to collateral attack even if the adj
vantage be taken of any irregularity
which may exist in the first instance.
| Third That, conceding for the sake of
argument the merits of the controversy
may be inquired into by an Appellate
Court. failure to answer the interrogato-
ries propounded does not come within
| the rule as to privileged communications
+! Taking up the contentious seriatum.
In support of the first contention it is
not necessary to so to the decisions of
foreign States, the matter having al
ready been decided by the Supreme
Court of Hawaii in re Davis, found in
| the II Hawaiian at page 595. In that
matter the Court says, at page 5sS, in
commenting upon the jurisdiction exer-
cised by the Circuit Court:
| by the common law every court OF
competent jurisdiction was the exclusive
judge of contempts committed in its
presence or against it's process, and the
exercise of it's power cannot be assailed
by resort to the writ of habeas corpus
| I'VE have no statute authorizing an
appeal in matters of contempt, and un-
der writ of habeas corpus we can only
inquire into the jurisdiction of the
Judge Furnishing for contempt
We submit that the application of the
rule of law in the Davis matter pre-
| cludes the Appellate Court from inquir-
| ing into any subject other than that of
the jurisdiction of the lower Court.
| II.
| (a) In support of division "a" of our
second contention the authorities are
numerous and uniform. In the case Of
Cody VS.. the State, Howard (Miss) q,
| found in Morris State cases, page l0g.
the case came up to the Supreme Court
on writ of error to the Circuit Court,
the record showing bill of indictment
was found by the Grand Jury, charging
the plaintiff at bar with murder; that
jury was empanneled and sworn 10
try the case upon the plea of mot gull
ty,' found verdict of guilty against
the defendant, who was sentenced to
Judgment of death. First error assigned
was that the Grand Jury who filed the
Indictment were not good and lawful
men of the county of Perry, in that they
had not been selected as prescribed by
statute. The Court says. in passing upon
this error:
"It is to presume that the court entrust-
ed with the selection of the venire has
drawn its jury by placing none upon it
except such as are good and lawful men
of the county, as by the direction of the
Act. 1t is permitted for any party whose
rights are to be affected by the aclion
of the jury to destroy this presumption
by challenge and proof at the time; IL
he is silent, however, he cannot after
wards raise the objection in another
Court. All exceptions to jurors must be
taken at the time of trial. To sustain
this posi,lon the Court might refer to
many adjudications of TIE highest
Courts in o,ner States. / Chitty Crimi-
nal Law. $685."
In the case of McCarty VS.. the State,
% Miss Report, 299, found in Morris
State cases, page 705, which was a case
in which McCarty was indicted for muir
der, convicted of mansaughter in the
first degree, and sentenced to twenty
years imprisonment in the penitentiary.
1t came up on writ of error, the seventh
error assigned was 'It does not appear
by the record that Grand Jury who found
the Indictment were competent jurors"
The Court says, in passing upon the
Grand Jury:
AS to the objection of the sufficiency
or the Grand Jury we do not think it
valid, but even If it would be when prop
erly taken, this Court will give no con-
sideration to such an objection, when
no complaint was made of it In the
Court below. and the case submitted has
gone to trial, and was fairly tried and
completed"
We would also respectfully call the at
tention OF the Court to the unreported
Hawaiian case of Fujihara, decided with
In the past ten days, which clearly, and
We submit coneiusively, decided the con-
tention that advantage of Irregularities
in drawing, einpanneling, summoning
and swearing of Grand Jurors must be