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

corpus whether on the showing mada
there was any lawful body of Grand
Jurors for If there was none tho nat;-
TONER could not be lawfully restrained
OF ms liberty for refusing to answer any
question propounded to him by them.
The case of Oriemon vs. Territory of
Hawaii, just decided by this Court. was
"rit OF error brought on the following
ground. among others:
THAT the Grand Jury RETURNING tba
Indictment against petitioner was not
drawn in the manner provided by law
ana was therefore an Illegal BODY
The Court declared In that case that
the record fails to show this fact, say
ing:i We have searched the record I'm
vain for this information
The Court also said
The general rule is that the formali-
ties for the selection organization and
doings of the Grand Jury are things
separable from the judicial jurisdiction
and other like fundamentals; so that
defendants can waive Irregularities
therein and they do waive any one
whereof they have knowledge if they
fail to object thereto promptly or at the
frst step in the cause permissible" Cit
ing I Bishops New C. p, section a2.
This decision does not undertake to go
TO the extent of saying that an unlaw-
full Grand Jury can present an indict-
ment but merely in effect that If it is
unlawful the objection thereto must be
made lat the first step in the cause per-
missible."
1t would have been sufficient undoubt-
eddy for the Court to have said that as
they found error upon the record of
the kind claimed by the plaintiff in error.
therefore they would not consider it.
ThA a lar1r has rh
Court said, on no evidence, was simply
that the Grand Jury was not drawn in
the manner provided by law.
1t did not appear, as it does in this
case, that there was no drawing at all
of the Grand Jury, but that the Grand
Jury which was summoned, impanneled
and sworn was summoned in direct vio-
lation of the provisions of the Hawaiian
statutes on the subject.
The alleged jurors did not even con-
stitute a de facte jury.
An officer de facto is prima facie one
de jure." q Ca. 217.
An officer de facto is one who per-
forms the duties OF an office with appar-
emit right and under claim and color of
an appointment, but without being ac-
tually qualified in law so to act 81
Me-. 423
In the present case the Organic Act
provides (section sd that Grand Juries
may be drawn in the manner provided
by Hawaiian statutes for drawing petit
juries''
They can be drawn in no other way.
for the common law on the subject only
takes effect in the absence of statutes.
The Organic Act further provides Sec
ton q for the express repeal of sections
1879 1881 and 1882; also sections 13i1 to
1854 inclusive, all of such repealed sec
tons relating TO juries, and especially
for the surnmoning and drawing either
of mixed juries or juries composed who'll
" or in part of foreigners. Such repeal
was required to conform to the provision
in section IS of the Organic Act
1.-THE provisions of said laws or any
laws of the Republic of Hawaii which
require juries to be composed of aliens
or foreigners only, or to be constituted
by impanneIing natives of Hawaii only,
in civil and criminal cases specified IN
said laws are repealed, and all juries
shall hereafter be constituted without
reference to the race or place of nativi-
ty of the jurors"
There still remain. however, the provi-
sions of the Hawaiian statutes unrepeal-
ed, requiring that the chief clerk OF the
Supreme Court for the Island OF Hawall
shall prepare the jury lists and draw the
sons being native Hawaiians, and fifty
other persons being foreigners by birth
or of foreign parentage- Sections 1896
1927, c. L.
And that the same clerk, tat least
twenty days before the sitting of any
court SHAH draw from the appropriate
box the names of twenty-four natives
and twenty-four foreign jurors.
such drawing shall be had in the pres
%r,.,
or a Circuit Judge, who shall certify to
the regularity of the proceedings sec
ton 1928, Ib.
Section 1890 Ib, requires the clerk to
transmit to the High Sheriff the names
of all jurors drawn in manner AFORESAID
In order that such jurors may be duly
summoned
The result of the failure to observe
these explicit requirements of the stat
ute is, that no Grand Jury has been Sc
Lected as required by the statute ana
the method that was adopted, to-wlt, a
list being handed TO the bailiff by the
circuit Judge TO summon, precluded the
possibility of any drawing at all by law
in tho manner required by the statute
Rv the statute of IL Hen. ", c. y, IL IS
provfded that no Indictment shall De
made by any but persons returned Dy
the sheriffs without any denomination
or naming of such parties by any other
person aa
hereafter in any point to the contrary
that the same indictment be asboiuteiy
void Section 52s, Thompson & Merriam
on Juries. :,
As said by Chief Justice Sharkey IN
McouilIen VS.. St, S. NJ, osi' a
Grand Jury composed of persons VINO 90
not possess the requisite qualifications OF
who are not drawn, summoned ana I'M
panneled in accordance with law, nave
no power to find a valid indictment
These restrictions and requisites nave
heer imposed for wise purposes iney
are guards thrown around the citizens
for safety and may be part of right Oh
trial by Jury The Grand jury does not
nv law consist of thirteen or more men
congregated by the mere order OF Court
or by accident in a jury box, but IL con-
sists of the requisite number oil natives
selected. drawn and sworn according TO
the forms of law -
, This view has been contested IN the
eo,,rts of some of the States, but we
submit that it is the only safe and cor
rect view to maintain. when, as In TINS
fan 0f