The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-11-19
HOL DS LAW
is GOOD
Cannot Go Behind
BaiIiff Act
Record.
LOCAL PRACTICE
is CONDEMNED
humphreys Says Jury Drawing by
Lot Was Abrosated by
Organic Act.

Judge yesterday dSAlGu
the motion attacking the panel of the
grand jury which indicted VIM. x.
Rathburn, upholding by his ruling the
bailiff law as passed by the last legis-
lature.
Attorney Robertson attacked the
present method of drawing jurors on
three different grounds. that the law
was not properly passed by the last
legislature; that under the civil law.
the common law of England is to be
the law in the Hawaiian Islands, and
as no person can be subject to criminal
preceding except under that law, and
bailiff to summon a jury, the panel of
the grand jury in this case was illegal.
For the third ground he claimed that
the proceedings of the Hawaiian 1egis-
Iature which passed the law were not
in the English language as is provided
by Section 46 of the Organic Act, and
consequently such action is illegal. The
latter point was not pressed, and no
argument was had on it.
High Sheriff Brown was first put on
the stand to show that he had not been
called upon to serve the venire. but
this point the court stated would be
admitted, and he took judicial notice
that such service had been made 5y a
bailiff of the court.
Edgar Caypless, clerk of the Senate,
was then put on the stand to testify
to the minutes of that body's proceed
ings in relation to the bailiff act. The
journal Of the Senate was offered in
evidence and objected to by Deputy
Attorney General Cathcart, which OBJ
lection was sustained.
Il would like to argue on that point"
said Mr.. Robertson.
1T is wholly unnecessary" replied
the court: argument for two days
wouldn't convince me of it's admissi-
bility. The Supreme Court of the Unit
ed States has decided that question,
and I do not intend to overrule that
court"
Mr.. Cathcart asked Mr.. Robertson to
admit that the law properly attested to
| by the officers of the Legislature and
signed by the Governor was now in
the hands of the Secretary of the Ter
ritory. This, defendants counsel
agreed to admit, and upon that admis-
sion the court then practically decid
ed the question.
THAT much being admitted said
the court, Il decline to go behind the
official act which it is admitted was
duly signed by the respective officers
of the Senate and House of Represen-
tatives and approved by the Governor.
and deposited with the Secretary of
the Territory, who is the legal Gus
todian of the laws.
II hold that the enrolled act in it
self is, in the language of the Supreme
Court of the United States, complete
and unimpeachable''
Solomon Meheula, clerk of the House,
journal was put in evidence and ruled
out by the court. upon the same
ground as given above.
Mr.. Robertson then argued on the
second phase of his attack. This act
provides" said he. that the bailiffs
have the same authority as the sher-
if. 1 contend that the English law
expressly excerpts criminal law pro-
ceeding, and the common law power
of the sheriff is the serving of jurors,
and it is the assumption that the sher-
if has such power here. This act
gave the bailiff the same power as the
sheriff, and is unsound because by vir-
tue OF the act, the sheriff cannot in
this Territory exercise the same power
of the sheriff in England in summon
ing juries. If the law denies to the
sheriff such power it also denies it to
the bailif. 1t was the intention of
Congress to continue in force the old
law. which provided for the drawing
Of juries by lot. excepting such parts
as referred to the distinction between
foreigner and Hawaiian. The Hawaii
an statute which provides for drawing
the jury by lot under the supervision
of the court and clerk is still in force
in this Territory, and that point is. of
itself, I contend. sufficient to warrant
the granting of this motion"
Mr.. Cathcart replied that the words
criminal proceeding" if taken in its
usual sense as contended by defendant
would have practically prohibited all
criminal procedure in the Territory |
during the transition period The or !
ganic act" he continued. repealed |
the former procedure and substituted |
indictments by grand jury for infa-
nous crimes. There is no power here |
TO change that"
IF the contention OF Mr.. Robertson |
is correct" interrupted the court, the |
sheriff is above authority. and could |
murder and commit crime with inn /
munity."