The Hawaiian gazette., 1904-11-29

informed MIN positively thnt ne would
not appear IN court
Judge Goar az this countermanded
hia order 10 the policeman ara forth
with granted the motion for gitu-
tion 20 the Governor. In doing =, h.
expressed regret that such an extreme
measure was necessary. but he could
see no reason why a Federal officer
should hold himself above the law.
He would have to proceed In the same
manner as would be required in the
case OF any other subpoenaei witness.
The citation was ordered to be made
returnable at 10 o'clock Monday morn
ing.
As the court was adjourning at a
quarter to five. Judge Gear asked Mr..
Thompson II he had prep red the cita-
tion. The attorney for the defendant
replied that it would be ready this
morning.
FORM OF SUBPOENA.
A subpoena duces te-um' is de-
fined In the Standard Dictionary thus:
"a writ commanding a person to ap-
pear in court. bringing with him cer-
tain designated documents or things:
literally, you will bring with you"
In Governor Carters case the docu-
ment to be brought was the undated
resignation of Auditor Fisher, the ob-
vious intent of the desired evidence
being to attack the competency of the
Auditor as a witness for the Govern
ment, on the ground that he was un-
der a sort of durance from having his
undated resignation hanging over his
head
JUDGE GEAR ANNOYED.
Judge Gear, on being seen after ad-
journment OF the court, spoke in dep
recation of the unpleasant position in
which the Governors course placed
him. He maintained that the Governor
had not an iota of justification in law
for disobeying the subpoena. In this
regard he showed the Advertiser re-
porter the United States decision,
rendered by Chief Justice Marshall in
connection with the trial of Aaron
Burr. where it was held the President
of the United States was amenable to
subpoena duces tecum requiring him
to bring certain letter into court.
One of the sections of the syllabus of
that decision by the eminent Amer
lean jurist reads as follows:
"A subpoena may issue to the Presi-
dent of the United States to compel
his attendance as a witness, and an
accused is entitled to take the course"
THE DIsOBEYED MANDATE.
Following is copy of the subpoena
issued to Governor Carter, together
with the serving officers return there
on:
I'm the Circuit Court of the First
Circuit, Territory of Hawaii.
Territory of Hawaii VS.. Stephen Ma
haulu. Subpoena.
THE Territory of Hawaii:
'To the High Sheriff of the Territory
of Hawaii, or his Deputy; the Sheriff
Of the Island of Oahu or his Deputy;
or any Constable in the Territory of
Hawaii:
You are commanded to subpoena
George r. Carter to appear at the
Court House in Honolulu, Island of
Oahu, before Hon. George d. Gear on
Friday the 25 day of November 1904
at o'clock p. m. to testify as wit
ness on the part of defendant in the
above entitled matter and to bring with
him any document or documents
writing on paper, being or purportinE
to be the resignation of ]. H. Fisher,
Auditor of the Territory of Hawaii.
Hereof fail not. and of this process
make due return.
Witness the Honorable George D.
| Gear, End Ju,'ge of the Circuit Court
Of the First Circuit, this 25th day OF
November 1904.
"WM. r. SIMS, Clerk"
Served the within Subpoena by