The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-07-04

curry favor; neither does it want to
make enemies. The order to noIIe prose-
qui will be entered because it is with the
province of the Attorney General
and is his right. If the Attorney Cen
erai believes. after having investigated
the case thoroughly, that he cannot Sc
cure conviction it is his duty to nolle
prosequi. The time of the court is suf-
hcientfy taken up by cases in which con-
victions can be had.
II the Attorney Generals Department
feels that it has made a mistake, and
TIE Indictment was improperly found
ana Is not legal, IT is the right and the
duty OF the Attorney General to enter q
nolle prosequi- We do not want the
time of the court and jurfes taken up in
the trial of cases where under the facts.
a conviction cannot possibly be secured
Inc entering of the nolle proseaui in
THIS case certainly puts the defendant
ma very bad light; having an indict-
ment hled against him and nolle pros
equ1 entered. l do not know but what
the defendant has some rights in this
matter also. The fact that a Grand
Jury has found an Indictment does not
or course prove that the defendant Is
guilty, but under these proceedings it
viii leave the case in very bad light.
- 49, AiiSA ely liitllldlSS that II may.
do not know but what the defendant
should be asked with regard to this mat
ter, and have his rights in the matter
considered. AS the court stated he is
not necessarily guilty because an indict-
ment has been returned by the Grand
jury A nolle prosequi may not be
what the defendant wishes in the mat
ter l presume the Attorney General
ihas not said anything to the defendant
IBy Attorney General: L have not) 1t
Seems to me the defendant should be
asked.
By Mr.. Ballou: If the court please.
the matter comes entirely as a surprise
to the defense. We have had no intima-
ton from the Attorney General. We
have to say first that, as a matter of
law, 1t Is our opinion that the Attorney
Generals action in the matter can no
more be controlled by the defendant
than 1t can by the court. He acts on his
own responsibility and no man can
claim the right to be put on trial before
a jury when the prosecuting officer of
the Territory does not think him guilty
OF crime and enters a nolla prosequL
With regard to the wishes of the de-
PENDANT, l do not know but what 1t is
surplusage after what has been said.
Under ordinary circumstances a man in
dicted by Grand Jury for serious
crime prefers vindication at the hands
of a Petit Jury, but, if the court please,
this is particular and an exceptional
case. If there was any cloud at all
resting upon this defendant in the COM
munity at the present time our wish
would be for a jury trial; but the en-
tire circumstances of the matter are
well known to the public, as well as
known to the Attorney Generals De-
partment AT the time the Indictment
was found it is a notorious fact that the
Grand Jury were laboring urder a mis-
apprehension. They thought Mr.. Smith
had reference to a corporation and an
entirely different matter than what aft
erwards proved to be the truth. The
truth came out within week or SO aft
er the indictment was found. and it
was discovered the Grand Jury had been
entirely mistaken and had been on an
entirely wrong track. They. had been
after the wrong corporation and the
wrong person with regard to whom Mr..
Smith was testifying before the Grand
Jury. The person was Mr.. J. Coerper
of Kona, Hawaii, and there was no such
corporation. So, in fact, Mr. Smith was
entirely correct when he made the
statement for which he was afterwards
indicted It is a matter of such public
notoriety, and has not been disputed,
and we agree with the Attorney Gen.
eraI in the statement that trial would
simply be a farce. While, in ordinary
cases, the defendant might want vim
dication at the hands of Petit Jury.
this case shows that there was simply
mistake, and it would not be right to
take up the time of the court and
trial jury to secure verdict that would
necessarily result in Defendants favor.
By the Court: AS the court stated the
responsibility is upon the Attorney Gen
eraI The responsibility of finding the
Indictment is partly upon the Attorney
General and partly upon the Grand Jury.
The Attorney General has the right to
do as he pleases in this matter. It IS
question whether the Indictment could
not have been drawn so as to hold de-
fendant The Attorney General says he
cannot prove the facts upon which
conviction must be secured in this case.
and therefore wishes to enter none
prosequi The court can only have such
an order entered as is asked for by the
Attorney General, and that order VIII
be entered and defendant discharged
arsi rrTATC TDaMr hRTInMC