The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-03-22
'OPEN VEN|RE
IS ILLEGAL
The Murder Trial
Abruptly
Ends.
Mother of Mrs. Flint
Speaks Her Mind
in Court.
Venue to Be Changed in Jones
Case Vouchers Cases
Continued.

Judge Robinson yesterday Afternoon
discharged all of the eleven jurors wh'
had passed for cause in the Jones muir
der case, also all the jurors summon
ed in a second open venire, and was
about to order change of venue tC
another Circuit when counsel for the
defense obtained continuance till this
morning to give time for considering
the new situation thus suddenly precip-
itated. 1t came Immediately at the
opening of the court after the noon re-
cess. Following is the decision of Judge
Robinson in full, which is self-explana-
| tory:
RULING OF THE COURT.
| Since the motion was made, gentle
men, for the issuance of an open venire
after the exhaustion of the $50 names,
this matter has come to my attention,
contained in the case of Hawaii VS..
Mankichi, decided by the Supreme
Court of the United States and con-
tanned in 100 United States at page 217.
After dwelling at some length upon
the points involved in that case, Ha-
| wall VS.. Mankichi, Mr.. Justice Brown
uses the following language:
'It is insisted, however, that, as the
common law of England had been
adopted in Hawaii by the code of 1897,
it was within the power of the courts
to summon grand jury, and that such
action might have been taken and
criminals tried upon indictments prop
erly found and convicted by a unan-
imous verdict. The suggestion is rather
fancifu1 than real, since section 11O9 of
the code of 1897
CThis is the law of 1892 as amended
in 1903 upon which you based your OBJ
lection to the granting of the motion,
Mr.. Robertson.)
adopting the common law of En-
gland, contained proviso that no per-
son shall be subject to criminal pro-
ceedings except as provided by the Ha-
waiian laws These laws provided ex-
presslyl (section GIG, Penal Laws of 1890
as follows: The necessary bills of in
dictment shall be duly prepared by
legal prosecuting officer, and be duly
presented to the presiding judge of
court before the arraignment of the ac-
cused, and such judge shall, after ex-
animation, certify upon each bill of in
dictment whether he finds the same a
true bill or not The question thus
squarely presented to every judge in
the Republic was, whether he was
bound to summon a grand jury under
the NewlandS resolution, when no pro-
vision existed by law for impaneling
the same, or their payment, and when,
in so doing, he was obliged to ignore
the plain statute of his own country"
This case was not called to my atten-
ton as a matter of fact, gentlemen,
either by the prosecution or by the de-
tense, and 1 think it is conclusive on
this matter and that the court erred in
granting the prosecutions motion for
the summoning of an open venire.
The order granting said motion IS
hereby vacated and set aside and the
objection to the motion sustained. Let
the open venires heretofore issued here
in be and the same are hereby vacated
and set aside.
Now, as to the disposition of this
case, think that as far as this court
is concerned the $50 names selected for
trial jurors have been fully gone into
and it would be useless to continue this
case for trial at the next succeeding
term of this court, because we are SINH
larly confronted with the same $50
names which have been called by this
court to serve and act as trial jurors
in this cause.
CHANGE OF VENUE.
Under section 627, Penal Laws of 1897,
which was a portion of the Session
Laws of 1876, Chapter 40, it is provided
Judge Robinson continued):
1T shall be lawful for any Court of
Record or Judge thereof, at any stage
of any criminal proceedings depending
therein, whether the venue be by law
local or not, to order that the venue
be changed. and to direct that the trial
be had in Honolulu or in some particu-
lar Judicial Circuit; in such cases and
for such reasons as the justice of the
case may require, and subject to such
conditions as the Court or Judge may,
/ in its or his discretion, impose"
Judge Robinson had uttered the open
ing words Of an order to change the
venue of the case to another Circuit,
when Mr.. Robertson interposed a re-
quest to stay further proceedings until
he could have time to consult with his
associate counsel, Mr.. Dunno
Mr.. Peters objected, limiting a depre-
cation of amy further surprises" He
said opposite counsel should not ask for
delay, since the ruling just made was a
sustaining of his own objection to the
open venire.
Mr. Robertson answered that the OBJ
lection was overruIed when made. and
that was as expected, so that its sus-
tanning now created a new situation.
Judge Robinson. after some further