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

V1des that II the Judge have reason to
believe that there may be collision in
any divorce case brought before him,
or that important testimony can be
procured which has not been produced,
it shall be his duty to continue the
case, and the Attorney General shall
be heard to establish the fact of collu-
sion or of the existence of evidence
not produced. Now, judge cannot
Suspect collision, or that important
testimony can be procured which has
not been produced " until the case is
actually brought before him. Then
fancy a judge having to turn to Cath
cart to secure evidence of collision or
to. produce important testimony when
he, although drawing the taxpayers
money for the very purpose, has taken
private fees to make out the best case
he can for his client in the particular
case, case in which his client is
charged with a criminal offense.
What position will Judge Lindsay be
in if in the progress of the case he
should suspect collusion7 Could he cx-
pect Cathcart to help him trace it7
Could he expect this County Attorney
to produce further "important testi-
mony" if that testimony were to be
used against his private client7 What
kind of position is this when public
official ties his hands from a possibil.
| ity of doing what may be his public
duty and placing Judge Lindsay in
position where he also may be prevent
ed from enforcing the law of the land7
Judge De Bolts Strong Statement.
1t was in regard to this possibility
of situation that Judge De Bolt said
yesterday: "I consider it highly i'm
proper for any prosecuting officer to
appear as private counsel in any di.
vorce case. have expressed this opin
ion to number of lawyers, and ]
think to one or two of the judges. Mr..
Cathcart has appeared before me in
several divorce cases and I asked him
the question once if he did not think
there was an impropriety in his SO APP
pearing as private counsel while he oc-
cupied the position of public prosecu.
tor. He did not answer the question,
merely replying that 'they all do it,
or that they have always done it.
"Firmly convinced of the extreme
improperly of it, of the embarrass-
ment it may lead both lawyers and
judges into, have given considerable
thought to some means of remedying
it. The law as it stands does not seem
to give Judge any power to prevent
it, except by calling attention to the
gross improperly of it, At one time
thought of trying to remedy it by
rule of court. But that can hardly
reach it. If the public prosecutor has
a right to appear in such cases, he
can not be prevented by rule of
court.
"The statute requires me to make
an annual report to the Chief Justice,
and I have in the past included in
amendments and improvements in the
law as the experience in the actual
trial of causes suggested to me. / am
now preparing my report for this year,
and / express myself on this subject.
Without anticipating my report to the
Chief Justice / may say that it seems
to me that Section 1894 of the Revised
Laws, which provides that when the
| judge in the trial of a divorce case
suspects COLLISION, or that important
testimony can be produced which has
| not been produced, he may call in the
Attorney General or any prosecuting
officer to take the matter up, might be
well amended by adding provision
of law from the State of Washing
ton. That provision is that in every
divorce case where the defendant does
not appear, or where he admits the al
legations of the complaint, the public
prosecutor shall appear and resist the
divorce and shall have the right to
summon witnesses. But where the at
torney for the plaintiff is the partner
of the prosecuting officer, or even oc-
cupies the same office with him, then
the court shall appoint some other
"I find on looking it up that this
Washington statute is quite an old one,
indicating that it seems to have work
ed well there. But it will be observed
that the Legislature of Washington
considered it improper to allow the
prosecuting attorney to appear in the
case in this official way even, where
partner in his private practise, or one
who even occupied the same Offices
with him, though they were not part
ners, was on the other side.
"The State is interested in divorce
cases as it is not in other controver.
sizes between individuals. 1t is inter
ested in maintaining the integrity of
the marriage relation and of the home.
II can be understood, then, why there
should be impropfiety in its attorney,
the public prosecutor, appearing in di-
voree cases, except as its representa-
tive. If he appears representing any
other interest than that of the public, |
there must be a clash between his in
terests and his duty.
ffT haua oluyo oznasHawoS "a