The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1908-10-02

States Court defending those accused
of crime, nor prosecuting officers in
the United States courts appearing in
the Territorial courts to defend those
accused of crime.
'But on the original subject, I con-
slider it highly improper for any pros
ecuting officer to appear as private
counsel in any divorce case.
Courts Attention Called.
The situation presented by Cathcart's
appearance in tho viii case was brought'
to the attention of the Justices of the
Supreme Court yesterday forenoon in
the course of argument, and so rs,isnt-
ly that they felt called on to inferen-
TALLY admit the seriousness of the sit
uation in which the County Attorney
had placed himself, by saying that they
could not take Judicial knowledge of
anything not in the record of the case
before them. AS the record did not
show that the County Attorneys office
was taking divorce cases they could
not pass upon the question of its pro-
priety or legality in the proceeding
then before them.
The matter was spoken of by Judge
A. S. Humphreys in his argument be.
fore the Supreme Court in the Blanch
Martin case. In this case the question
is whether the Territorial statute
against adultery is in force, or whether
the Edmunds Act is exclusive in its
operation or whether both are in force.
Judge Humphreys, representing the ap-
pellant, maintained that the Edmunds
Act is exclusive in its operation and
that the Territorial statute is not in
force. Deputy County Attorney Mil
verton, representing County Attorney
Cathcart, appeared to maintain that
both statutes are concurrently in effect
and that defendant can be prosecuted
under either. Deputy Attorney Gener-
al Whitney appeared to maintain the
proposition that the Edmunds Act is
not in force here but that the Terri
torial statute is exclusive in its opera
ton. Attacking the position taken by
Milverton, Judge Humphreys said:
"There is a striking inconsistency
in the position taken by the County
Attorneys Office concerning these mat
tiers. Here we havee one of the staff
of that office contending that the Ter
ritorial laws against certain social
crimes are in force, while his chief is
now before Judge Lindsay defending
a person in divorce suit charged with
adultery. Either these gentlemen are
not sincere in contending that the Ter
ritorial statutes are in force, or, If they
are sincere, then it must inevitably fol-
low that they are guilty of q gross
abandonment of duty in appearing in
civil suits bottomed upon the commits.
sion of crime.
"And all the more fragrant is this
departure from duty when take in the
beard and teeth of a statute which
says they shall not do 500
Supreme Court Decision.
So insistent are the ethical leaders
of the bar, those members of it who
reach the Supreme Court bench, lest
shady methods should creep into the
prosecuting departments, that deci-
sion is ON file in this Territory criticiz-
ing an Attorney General for appearing
as private attorney for parties involved
in civil suit in a case based on the
the criminal suit itself was terminated.
In the case of Phillip versus Waller,
reported in 5 Hawaiian Reports, page
eli, decided by Chief Justice Judd, the
Attorney General appeared as counsel
for Phillip, who was suing Waller to
recover damages for malicious pros
ecution. In criticizing the Attorney
General for appearing in tn, case, the
Chief Justice said:
"The Attorney General was counsel
for the plaintiff. He is by law the
public prosecutor: and if he should ap-
pear as counsel to sue for damages in
behalf of parties for matters arising
out of the criminal prosecution, it
would tend to discourage, if not to pre-
vent prosecutions for offenses.
1t was not improper for the court to
express its disapprobation of this
course, and its effect upon the pros
ecutions for crime"
1t will readily be seen that the pres
ent Cathcart case is much more fla
grant case than the one referred to by
Justice Judd, for in that cnsc tfe crimi-
nal prosecution had actually terminated
before the Attorney General appeared
as counsel in the civil suit, while in
the Will case, in which Cathcart, the
salaried County Attorney, now appears
as the paid advocate of one charged
with criminal otfense, the prosecution
is not even begun-if IL ever is. Cath
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