Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1904-05-23
new VOUCHERS TRIAL
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tCOntlNueu from Fd9c vi
the Court to be desirable move In
the interests of fair trial to raise the
point and to allow an opportunity for
the discussion. Such an opportunity
was suggested to counsel representing
both sides of this case and they chose
to take advantage of 1t and argument
was made.
Section $50 of the Revised Statutes
is the foundation of this question; 1t Is
as follows:
Sec. $50. No pleading Of a party.
nor any discovery or evidence obtain.
cd from a party or witness by means
OF a judicial proceeding In this or any
foreign country. shall be given In evil
dence, or in any manner used against
him or his property or estate. in any
court of the United States, in any
criminal proceeding, or for the en-
iorcement of any penalty or forfeiture.
Provided. That this section shall not
exempt any party or witness from
prosecution and punishment for per
jury committed In discovering or testi.
flying as aforesaid .
Counsel for the prosecution contend.
ed in the first place that this section
refers to evidence forcibly obtained
from a person or against his will, or
against his free choice; and second,
that no objection having been made to
this question at the trial, and the evi.
dence having been taken and the case
continued to verdict, without objection
or exception, the defendant has waived
his right under this statute to object
TO its admission.
= But II appears It was proper. before
II was too late, to give the defense an
opportunity of making the objection.
! It therefore appears to me that the
authorities offered by the prosecution
on the point that the objection was not
made at the trial, are not precedents
against the allowance by this court Of
an opportunity to counsel for the de.
PENDANT to make this objection to such
evidence after the trial, and for argu'
ment thereon in open court.
] On the first point made by counsel
for the prosecution. to.wit: that Sec.
ton $50 of the Revised Statutes only
refers to evidence obtained from a wit.
ness by means of judicial proceedings
which he Is compelled TO give or
which is in the nature Of involuntary
evidence, / do not find that he is sup.
ported by the authorities. The word.
ing of the statute offers no loophole
FOR such construction. II says no dis.
covery or evidence obtained from a
party or witness by means of a judi.
cial proceeding in this or any foreign
country shall be given in evidence or
in any manner used against him or his
property or estate in any court Of tho
United States, In any criminal proceed
ing or for the enforcement of any pen.
atty or forfeiture" In the case OF
Counselman VS.. Hitchcock, 142 U. 5,
564, the Court, in discussing the ex
tent of the application of this statute
says, after quoting the statute:
ut follows that any evidence which
might have been obtained from Coun
selman by means of his examination
before the Grand Jury, could not be
given in evidence or used against hin
or his property In any court of the
United States in any criminal proceed
ing, or for the enforcement of any
penalty or forfeiture. This, of course
protected him against the use of hi:
Testimony against him or his property
In any criminal proceeding In a court
OF the United States"
The Court, going on, decided tina
such testimony might he used {,
search out other testimony to be uset
In evidence against him or his prom
erty In criminal proceeding In sucl
court and generally to use such evi
dence as a guide In looking up tn,
case against the defendant.
Under this authority, the statements
given by defendant before the Crane
Jury, were illegally ugpl against hin
at the trial and he is entitled to tria
free from such evidence. On thi
ground. therefore, the motion for
new trial is allowed.
New trial was set for the Octobe
term.