The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1904-11-28
CARTER DISQREYS
Continued from page one.)

see that such laws are faithfully en-
ecuted' be willing to come into court
and give his evidence i'm this case when
he has been regularly subpoenaed by a
defendant, who, by the constitution Of
the United States is entitled to pro-
| cess to compel the attendance of wit
nesses in his behalf
1.-THE Supreme Court of the United
States has held that this means any
| person the defendant may wish to sub
poena, and that even the President of
the United States may be subpoenaed
in a criminal case.
IN the case Of Aaron Burr the Pres
ident of the United States did not think
| it beneath the dignity Of the Office he
| held to respond to the subpoena by
| sending the required information INTO
the court. In no case that have been
able to find has such a reason as that
| last referred to been offered for a re-
fusal of an executive to testify. The
| Governors statement that stress Of
! public business and the fact that high
public interests might suffer were rea-
sons for his not complying with the
! subpoena, must of course be given due
! y
| is situated across the street from the
! Capitol; the Governor woull probably
be detained ten or fifteen minutes, 50 IT
| does seem to me that the excuse offed-
er is rather a lame one. There is no
doubt i'm the mind Of this court that the
Governor could, If he would, without
serious or any injury to the public in
terests, spare the time to give the evil
dence sought in this case.
Although defendants counsel acted
within his legal rights in issuing the
subpoenas, it seems to me that it
would have been better in the first
place had counsel asked the court to
personally request the attendance OF
the Governor as a witness. If, however,
the Deputy Attorney General who de-
livered the Governors first reply, was
acting in the capacity of representative
of the Governor when the court ex-
pressed it's intention of sending a per
sonal request to the Governor to ap-
pear land it appears by the Dcputy's
latest statement that he was so acting)
the answer of such Deputy to the effect
that il would be useless to send this
message to the Governor, as he had
and would refuse to obey such request,
would seem to indicate that even a per-
sonal request made originally would
have been disregarded.
This is a case of first impression so
far as l have been able to find from the
report of cases No case that the court
has seen, and there is no authority in
point, where defendant charged with a
serious offence, under a constitution
guaranteeing him the right to compul-
sorry process to compel the attendance
of witnesses in his behalf, has sub
, poenaed an executive as a witness who
has refused to appear in obedience to
the subpoena.
} Under our statutes the subpoena is
issued in blank, that the names of the
witnesses to be summoned may be in
serted after the issuing of such writ;
the subpoena shall be obligatory upon
= the parties actually served Herewith
and upon 'non-attendance of witnesses
duly summoned, the Court shall have
summary power to cause their attend
ance and to punish them for contempt
Never before in this Territory, so
far as the Court knows, has any Gov
) eTnor of this Territory, refused to
: comply with a subpoena and this ques-
= ton has not therefore arisen here. He
. certainly is not excepted by the terms
2 of the statute which makes a subpoena
2 obligatory upon the parties actually
, served. No martial law has been de-
clared, as was the case in Pennsylva-
= MIA, and the court is unable 90 find a
t substantial reason for the Governor
refusal to become witness i'm this
case.
LAS to the materially of the evidence
sought to be obtained, that question /.
one for the court to pass upon. How
ever, understanding c.early as l do tina
\ the chief executive has refused to ODE!
\ the subpoena, 1 am yet averse to haV
= ing him brought into court to SHOW
cause why he should not be COMMITTEES
for contempt and will therefore orde
: that the citation do not issue In 81
: doing / do not overlook the right of tn
defendant to have produced all mate
. rial evidence for his defence. Whei
the proper time comes l shall rule Oh
the materiality of the testimony whicl
it is alleged the Governor would give
Should it be held by the court that sucl
testimony is not material the matte
= viii end there. on the other hanC
T. should the court hold that the testi
e mony is material the prosecution viii
70 be compelled TO admit it as set forth. II
10 the event of the refusal of the prosecu
= tion so to admit, the jury will be in
a structed to return verdict of not gull
; ty for a refusal to have afforded to tn
,. defendant his constitutional rights"
:, The ruling having been given the cas-
10 proceeded, Auditor Fisher continuing
; | his evidence as to affairs as he fount
% them in the Land office.
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