The Hawaiian gazette., 1909-06-08
THW|NG OBJECTS
To A SUBPOENA

tne points that were raised by Thwing.
Court was adjourned by Clerk Murphy
until june 81, when it is expected that
Judge Dole will be able to resume his
duties on the bench.
Thwing, who was called to testify
before the Federal grand jury by a
subpoena issued at the direction of r.
w. Breckons, the u s. District Attor.
ney, made a motion to have the sub.
poena quashed and declared illegal. 1t
was protest against a common prac-
tise of issuing general subpoenas in
which nothing is said MS to the nature
of the case or of the alleged offense
and no hint is given of the identity
of the complainant. The subpoena in
the case reads as follows:
Subpoena Ticket,
District of Hawaii
To E. w. Thwing, Honolulu.
BY virtue of a subpoena issued out
of the United States District Court,
you are required TO be and appear be-
fore the said Court at Honolulu, at 8
o clock a. M, ON the 18th day OF June,
1909, then and there to testify on be-
half of the United States in the case
of Investigation before the U. S. Grand
Jury, and not to depart without leave.
If you fail to obey such subpoena, you
may be fined and imprisoned, as the
Court may direct.
E. R. HENDRY,
U. S. Marshal.
Per r. IRWIN,
Deputy U. s. Marshal.
The protest made to the court IS sub
poena was as follows:
~ wish to file my protest with this
court against the form of subpoena is
sued to me by the direction of r. w.
Breckons, U. s. District Attorney. No
indication of the case in which L am
to give witness is given, although the
printed form of the Department of JUS
tice indicates that the name of the case
should be given. Mr., Breckons refuses
to give me this information.
"Judge Ward of the U. s. Circuit
Court, n. Y, has decided that such an
indefinite subpoena is illegal and void.
81 am ready to aid, by my testimony,
any investigation before the U. s.
Grand Jury, yet l believe that l have
the right to know the name of the
special case in which L am called to
testify for the following reasons:
Refers to Authorities.
81. The decision of Judge Ward
above noted supports my claim.
"2. The form provided by this court
indicates at least general intention
that witness should be informed OF
matter in which he is called.
"3. The name, of the case being
given would enable witness to con
suit counsel and so have his rights
protected as provided in the fifth
amendment of the Constitution.
"a. While the charges and inves'
tigation may not be public, yet the
names or names of parties involved
should be given to the witness, or al
least the general subject of the case
Otherwise abuses may creep in and wit
nesses may be deprived of important
rights and privileges provided by law
"5. 1t might contribute greatly tc
| some Investigations if authorities hac
an unlimited right to search persons
and houses. But citizens are protected
against any abuse Of this kind. 1t il
| lust as important that witnesses shoult
also be protected in their rights.
"I make this protest not from an,
| unwillingness to testify, but as mat
| ter of right and principle.
Mr.. Thwing also supports his protes
by the following argument, covering
legal precedents and authorities:
"The subpoena being the court
writ, it is the duty of the court t
guard and direct its proper use.
"It is not question as to what ma.
be the nature of this particular matte
before the grand jury, or of the fan
ness of the U. S. District Attorney, bu
it is question of what is the RICH
practice to be followed in all cases b
the u. S. Attorney and the grand jur,
question of grave Importance.
"Even if the exact name can not b
given. vet some definition of and linn
to the examination to which the wi
ness may be subjected should be flu
nished. This was done in the subpoen
issued out of the U. S. Circuit Court {
New York in the case of U. s. VS.. Kin
ball, III f. r. 1856.
s'There is strange absence of a.
thority on the subject. However,
Hale VS.. Kenkel, POI U. s. 43-65, JudG
Brown said:
Z" In summoning witness it
quite sufficient to give to the witne
the names of the parties with respe
to whom they will be called upon
testify, without mentioning the charl
2 against them
S "The language used indicates tn
q the Supreme Court thinks that wi
nesses should be informed of the nam
of the parties with respect to who
3 they are called to testify. On the 9th
2 hand, if a name can not be given, thu
some subject should be indicated.
sit may be said that these generi
or John Doe, subpoenas have been oft
5 issued from this court. But unless tn
r have been challenged and a decisi
+ secured the precedents are of no weigl
See Boyd VS.. U. s., l16 U. S. GIG.
. GA subpoena duces tecum may real
+ amount to an unreasonable search
Y seizure within the Fourth Amendme
|. to the Constitution"
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