The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1916-04-07
Foster 1. Davis Is Charged On
Nine Counts With Misappro-
priation Of Funds
BOTH JUDGES SITTING
MAY BE DISQUALIFIED
Examiner Mcconnell Says There
Has Been No Actual Short
age In Public Moneys

Foster L. Davis, former clerk Of the
federal court, was indicted yesterday
morning by the federal grand jury on
nine counts charging him with the mis-.
appropriation of as many different
sums of court funds totalihg $3l63. O2.
On receipt of news Of the indictment
Davis presented himself in Marshal
Smiddy's office and accepted service of
the warrant Of arrest, being immediate.
y released on his own recognizance to
appear in court whenever ordered to do
so for trial or other disposition of the
case
The indictment charges Davis with
receiving moneys and not depositing
them forthwith" in the depository
of the department, this constituting a
violation of section 30 Of the penal
code of the United States, il is claimed
The charge and every count there
under is believed to be entirely tech
meal. All the violations charged oc.
Cured while Davis held the Office as
deputy clerk. ..
Violations Are Technical
~ have no hesitation in saying that
there is no shortage in the accounts
of the Office" said Henry Mcconnell,
federal examiner, yesterday. "Thc
moneys have all been accounted for
but were not paid in to their proper
place at the right time. ~
Robert w. Breckons and Howard
Grace are Davis lawyers and it is be-
lieved that they will attack the validi-
ty of the indictment and the counts
hereunder by demurrers when the pro.
per time arrives. This. and the actual
trial of the case, should it ever go to
trial brings up an interesting question,
which was discussed freely yesterday
in federal judiciary, eiEeles.
"Who will try DaVisf"
Are Judges Disqualified
This question was asked freely and
frequently. Summarized. the consensus
of opinion was and is that the presid-
ing judge and Judge Vaughan, when
he qualities AS such, are disqualified
the presiding Judge. owing to the fact
that he has figured conspicuOusly in
the case, by removing Davis from Of.
flee, summOning the federal grand jury
to investigate the alleged charges
against the former clerk and through
having several interviews and consul
tations. more or less warm, with Davis
and others concerned officially and
otherwise in the matter. Judge Vau-
CHAN, as district attorney has been Of
feially busy in the discharge of the
duties of his Office and as such has
conducted the prosecution" of the case
so far. Yesterday he signed each and
all of the counts of the Indictment us
district attorney. Clearly, contend
those who have discussed the situation.
both federal judges are disqualified AMI
neither may try the case All Of which
brings up again the question:
"WhO will try DavisH"
'Neighbortng' I=4ge May Sit
There is a provision of law that in
ease where the judge or judges are
disqualified to sit in the trial of a
criminal case judge Of the adjoining
district may be called upon to try ii
and in such case such substitute or
assigned judge shall try the matter in
the district in which the alleged vio-
lation of law was charged to have been
committed In such case a judge Of the
ninth circuit, California, would preside.
The government has no right to ask
for a change of venue and thus try
the case in another Jurisdiction, it Is
claimed. The right of seeking such
change of venue lies only with the
defense, when it is granted. II is al
most certain, claim those who 4under'
stand such legal technicalities, that
Davis counsel will ask for no change
of venue.
Summarized. the counts in the in
dictments Against Davis are as follows:
The Nine Counts Outlined
Under the first count Davis is charg-
ed with having on OF about May %,
1915, unlawfully, wilfully and felo-
niously failed to deposit $576.95 Gas
required by law ...'
Foster L. Davis was appointed clerk
of the federal court on November IL,
1915.
Second cOunt-On or about May 20,
the sum of $445.
Third eount--Julv 81, 1914 while he
was deputy clerk, $32l.30.
Fourth couht--Between August ]
and December 81, 1914, $l00.55.
Fifth count-Between May 80, 1914
and December 81, 1914. $40.
Sixth cOunt-Between November II
and November 30, 1915, $llS7.07.
Seventh Ount-Between August 8,
1913, and August 80 1918. $4S.
Eighth Between September o,
1913 and September 30, 1918. $2lllO.
Ninth count Between March 10,
1918. and June y. 1913, $40.
Foster l.. Davis was appointed clerk
of the federal court on November II,
1915, previous to which date he was
first deputy clerk.
"Since was ousted as clerk of the
federal court have consistently court.
ed and demanded as free AVID complete
an investigation of the subject matte
of this dispute as could be had and
am glad the grand Jury has brought
the matter to a point where the right
or wrong of the whole thing will come
Out," said Mr.. Davis Yesterday.