The Hawaiian gazette., 1909-07-23

CARRIES POINTS


ths conspiracy ffal befor, Judge 10 i
Bolt yesterday. winning every iu
porisni point regarding she admiifl
biity Of evidence and shutiing out a
great deal of the cross examination u F,
sheha attempted by Attorney Light
foot
The papers seized by the authorities
on the night Of the arrests were ad' |
mitted after a hard fight and included
the account books Of the Nippu Jill
showing that Negoro was paid editor,
number Of private papers in Negoro :
handwriting and mass Of correspond
enee from laborers and branch offices
of the Higher Wage Association when
was found in the Jill Office.
Sheba was on the stand all the morn
ing. The day proceedings began
with the introduction Of more copies
of the Nippu Jiji containing the same
kind Of threatening language as those
introduced on The previous day, and
one in which the paper refers 10 IL
self as the organ of the Higher Wage
Association. Another issue contained
a despieable attack ON Sheba's family,
his wife and daughter being represent
ed in ribald verse as weeping together
over his treason to his countrymen.
The offer of the account books Of
the Nippu Jill in evidence precipitated
the first big fight of the day. Light.
foot offered TO prove that the book
was obtained from Sega, after the lat
tcr's arrest. on the threats that his
safe would be dynamited if il was not
produced. Kinney denied the threats
and said that Sega produced the book
when requested, but was willing to ad.
nit that for all practical purposes 1T
was produced under compulsiOn.
Neither side claimed that there was
any authority or sanction of the court
and the lawyers thrashed out the ques.
ton as to whether the illegality of
the seizure had any effect on the adj
instability of the book as evidence.
Opinion BY Court.
Judge De Bolt stated that at his
request the attorneys submitted their
authorities to him in advance, and dc.
\ livered the following opinions:
'In King v. Luce, q Haw. 6S4, the
\ documentary evidence was obtained by
4 force of search warrant, issued by
. Chief Justice Judd for the purpose Of
using the same in evidence against the
defendant. The evidence was not OBJ.
4 tanned independent of or without an
order of the court. 1t was clearly in
admissible.
"1n Boyd V. United States, 1l6 U.
s. 6l6. the defendant, was required by
an order of court made in pursuance of
an act of Congress, to produce certain
documentary evidence, or else the al
legations of the district attorney to be
taken as confessed. This case clearly
is not an authority on the question Of
. evidence obtained without the sanction
of the court.
Gin United States vs.. Wong Quong
Wong, 81 Fed. 1872, the court, notwith-
standing the total disimilarity of the
facts therein involved with those in
the Boyd case, quotes therefrom and
follows, what il to my mind obiteI
dictum The point decided in the BOYD
ease being that the defendant could
not be compelled by an order of the
court to produce documentary evidenc,
against himself. In the Wong Quonl
Wong case the court made no order.
"The rule as laid down by Green
leaf, (vol. !, Sec. 254a), Wigmor,
N (Vol. 3, Sec. 1889, and other author
tiles is, that though papers and othe
subjects of evidence may have beer
illegally taken from the possession o.
the party against whom they are of
fered, or otherwise unlawfully obtain
cd is no valid objection to their ad
instability if they are pertinent to tn
issue. The court will not take motto
how they were obtained, whether law
fully or unlawfully, nor will it form a
issue to determine that question. TIL
admissbility of the evidence depend
ing largely, If not entirely upon tn
question whether or not the court ha
used its power or process to obtai
such evidence. The point being tina
If the evidence is pertinent and ha
not been obtained by order or sanctio
of the court it is admissible.
"Gillett on Indirect and Collaterf
Evidence, See. 81, says: 'The court
have in many instances had presse
upon their consideration the questio
as to whether the constitutional prov
sions against unreasonable search'
and seizures, and against compelling
person in criminal case to give ev
dence against himself, should be !
construed MS TO preclude inc recepllO
of evidence illegally obtained. TheI
is, however, little or no disagreemer
upon the authorities respecting tn
question The courts will not use the
own powers or process to obtain sue
evidence. They will not permit pc
son on trial for crime to be even cal
ed ON, during the trial, to indulge
any experiments designed TO establii
his identity ms lhe criminal.
Although quite variant in its fac
from the case last cited, the case {
Boyd V. United States arranges itse
within the same principle. II was thel
held thnt the constitutional rights {
defendant In criminal case migl
be violated by obtaining incriminatir
evidence from him under the moral
compulsory process Of a subpoena due
tecum, Bpt In eases where eYden'