The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1909-02-14
BOOTH IS FREED
On A DEMURRER
Judge De Bolt Declares That
Man May Burn Own
House.

| attorneys, Alex. Robertson, j. A. Ma,
COON and Kinney, Marx. Prosser and
Anderson. Upon the decision of Judge
DE Bolt, Deputy Attorney General
Whitney entered nolle prosequi in the
case of Kaaumoana.
Judge De Bolt held that if the charge
in the indictment was admitted to be
true there would be no infraction of
the law, declaring that anyone possesses
the legal privilege to destroy one IS own
dwelling at any time, supporting the
argument that was made by Alex Rob-
ertson in replying to the contentious
and legal points raised by Attorney
General Hemenway and his deputy, Mr..
Whitney.
~ don t see how I can do otherwise
than sustain the demurrer declared
Judge De Bolt, in the course of his
decision. s'The charge is very grave
one, and very important from any pos
sible point of view, to be sure. It
might be thought better for me to over.
rule the demurrer and let the Supreme
Court finally pass upon it. If there
was any doubt in my mind, although /
might be strongly inclined to sustain
the demurrer, that might be the better
course to pursue, but it seems to me
that the proposition is SO clear that
it would be idle to even do that.
No Crime Involved.
cit is a clear and conceded PROPOSE
ton, as [ understand it, that a man
has a perfect right to do what he
pleases with his own property so long
as he does not iniure the rights of
nfh how hot L.
with his own property he can direct
Or authorize another to do. So, in this
case, Mr.. Booth had an absolute right
to burn down his house; there can be
no question about that in reason, com
| mon sense nor at law, as I look at it.
Having that right he could employ or
direct anyone else; assuming, as the IN
dictment says, that he did direct or
| employ David K. Kaaumoana to burn
the house, he did no more than he had
a right to do, and David Kaaumoana,
| obeying the orders and demands, as it
| is claimed, committed no crime.
No One Harmed.
There is no doubt but that burn.
| ing one IS own house under certain facts
and circumstances, bringing it within
the operation of some existing statue,
| if those facts and circumstances are
set forth in the indictment, would be
a crime. Possibly, where the house is
contiguous or adjoining or in the inn
mediate vicinity of other houses or
property, then l can see that the public
is directly interested; that the rights
! of the public by thus burning one s
own house would be endangered. We can
not go beyond the language of the in
dictment and say that the house is sit
uated in a populous district; we gan
only assume and take into consideration
| that one house and that is the only
house that the court knows as far as
this Indictment is concerned. The court
cannot assume that other houses are
dangerously near It to be endangered
by fire. Those are elements which,
as they are ESSENTIAL to make out a
crime, should be alleged and cannot be
/ assumed. ~
| Booth was charged in joint indict,
ment as accessory before the fact on a
charge of arson ia the second degree
1t was alleged that he had his home
on Pacific Heights burned about seven
years ago, Kaaumoana being charg
ed as the actual perpetrator of the
deed. About the only evidence eonsid
cred in connection with the Indictment
was the unconnected statement OF
David Manuel, a police officer. The
securing of the insurance ON the build
ing was the motive of the crime alleged
in the indictment.
Trent Makes Charges.
A wicked conspiracy on the part OF
the Supervisors that robs the Mayor
of his veto power and incidentally
nullifes the will of the people Gas ex
pressed through the Legislature in the
said Municipal Act,'' are two of the
many statements that appear in the re
turn and answer to the writ of manda
mus secured by Charles Coster, chief Of
the municipal stables, in an effort tt
collect on his salary warrant. The docu
ment is distinctly formidable in an
pearance and impeaches the City
Fathers in many legally phrased para
graphs for what is declared a contemp
tuous disregard for the wishes of the
body polite and circumventing The
avowed and plainly marked intention:
of the law.
The most lengthy Indictment thai
Trent hurls at the County Supervisor:
/
together for the purpose of relieving
the Mayor of his legitimate spoils. Of
office. Trent states that the resolution
that was the last official act of the out
going Board of Supervisors of the Coun
ty of Oahu was part of the plot ant
that Bourbon member of the board
Frank Harvey, was the only protestant
against the nefarious scheme. While
the apparent purpose of the resolution
abolishing all offices under the county
government was to give the municipal
y infant a fair start, Trent s observation
thereon is to the effect that it was
! designed to relieve the incoming Mavo1
of his appointive power under Section
146 of the Municipal Act.
So the outgoing County Supervisors
were in connivanee with the incoming
City Fathers in the general conspiracy
to take the appointive power from the
Mayor.