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TIIUllSDAY, JULY 11, 1889.
Sttar J A Ciuninlus from Koolau
Bk S 0 Allen for Snn Frnuolsco ntO n m
Bclir Wnlnialu for I'inm
Schr Kawiilhmi for Koolnu
Schr Kuulllun for Kauai
Solir Kualukttl forElcele ami llanapepe
Sfclir HUpUUo for-Walaune
Stmr Wnluiannlo for Walanne auil Wal
ttlutt t"fc a. m
VESSELS LEAVING TO-MORROW.
tiktne Planter for t-nu Francisco
Btmr Kluau for Illlo uutl way ports at
Stmr U It Bishop for Walauae, Wolulua
and Koolnu ut 0 a in
Stmr Iwulaul for Lnlialna and llaiua-
kua at 10 a m
. The 0 It Bishop brought jestcrday
4:10 bugs, the Mokuolu 260, and the Ha
waiian! oi.OJbags of rice.
Thu Iwulaul Balls nt 10 o'clock to
morrow mornlug for Lnlialna, Kukul
baule, Uouokaa, I'nauhau, 1'aaullo and
JAPANESE SAILOR DROWNED. '
Capt. Pnhia of the schooner
Catorina went shark fishing yester
day, taking four Japanese sailors
with him, When off 'Waianae one
of the Japanese fell overboard and
was lost. The captain searched for
the sailor' some time without suc
cess, then coining ashore traveled to
The cat (on the outside of the
milk-can) You seem to be enjoy
ing yourself in there). The fish
Yes, after a fashion ; but what
makes the water this whitish color?
Husband, (on his wedding tour)
I want rooms for myself and wife.
Hotel Clerk Suite? Husband Of
course she is perfectly lovely. The
sweetest girl in the world.
Apollo is Baid to be the first gen
tleman who ever struck a lyre. If
he had only hit him a little harder
wc might not have so many magnifi
cent liars at the present time. Troy
Flatte I see that the English are
buying up all our lager beer brewer
ies: I wonder how they will carry
the beer across the water? Sharp
Oh, in schooners, I suppose. N.
STORE TO LET
UE Store lately occupied
liv K O. IinWr. Wnv'n
' clc, K-nc strui t. at reusotj.
ahle runt tl.
l'otSt:i(iu given at once.
J. G. KOTHWELL.
FUKNIM1RD Hooms to let,
houihWcbt corner of
l'un'libowl unrt Uerctfiniii
Btn-eis. would .bu very convenient for n
Bimill fiimily. 255 Cm
Stables & Pasturage To Let.
EXCELLENT Btiblcs con
UiiiiuK l:t Sull.o, Cottaue
n,(l 7 ucil-! Piisiun: Land, on
buiuu street, neir King, foimerly occu
pied by Mr. White, proprietor of tlic
P.tluma Bus. To let-on very moderate
teims Apply to
J. E. 11ROWN & CO.,
255 tf ' 28 Merchant street.
THE 'Emerson Homestead,'
beautifully situated in
Wuialua, Oahu, II. I., com
pricing n large House with 1U rooms,
kitchen, pantry, barn etc., '11 acres of
choice land i.ow partly in tnro aud other
vegetables, and a rich pasture of ni
acres within half a mile. Pure water is
brought to the himm und grounds from
never failing spiings, the supply of
which can he indefinitely increased in
quantity. There is a good carriage road
to Honolulu, 23 miles distant, also to tho
steam' boat lumling, lead thnn half a
mile distant, wheie steamers from the
city touch three times a week. Tho pic
turcscpic ticenery, fine climate aud un.
rivalled water privilege muko this a
most desirable place for a country re
treat and sanitarium. Terms moderate.
For further information apply to
J. A. MAQ0ON,
257 tf Honolulu.
iiuuviau x iiusiuuuuu in
121 Pauoa Valley, known as
iTVdAM'n i, t.i i-
i the "Booth PrcmUes." Con.
tains large iooms, parlor, dining and
four led rooms, closets and modern im
provements and conveniences; out
houses and pasture. For further parli.
culars anplv to
J. e. imowx & CO.,
203 lm 28 Merchant street.
LOCAL & GENERAL HEWS,
A Kona storm is predicted within
a few days.
The pool selling
case has been
Tub St. Andrew's Church Associa
tion does not moot this ovening.
The band gives a moonlight con
cort nt Emma Square this evening.
Tun Myrtle Boat Club has now its
full complement of members, viz.:
Tun Kin au sails nt two o'clock to
morrow afternoon for the Volcano
and way ports.
The cattle for tho Wuodhiwn Dairy
Co. were all landed last evening with
out any accident.
Mn. George Lucas; executor of the
will of Mrs. M. Keegan, deceased, has
a notice elsewhere.
Tun bark S. C. Allen look from
the Post Uffico to-day, 781) letters and
271 packages of papers.
A mail for San Francisco by tho
Planter closes at tho Post Olllcc to
morrow morning nt 9 o'clock,
Nov. 20th was by a typographical
error put for tho 28th as Independ
ence Day In yesterday's issue.
On Monday, the 20th, at 10 o'clock
a. m., tho animal meeting of the
Waiohinu Agricultural aud Grazing
Society will be held at tho ollir.e of
C. P. laukea.
In the case of Maria Apai ct nl.'vs.
Nnholowaa et al, trespass, before Mr.
Justice Bickcrtou and a mixed jury,
a vordjet'wrts returned this "morning
for plaintiffs with $150 damages. A.
Kosn for plaintifi'8; S. K. Kane for
Theue was quite a large audience
in attendance in the Supremo Court
this morning during the rendering of
tho decibion in the nolle pros, case,
including Major Wodoliouse, II. B.
M.'s Commissioner, the Minister of
the Interior, Hon. John O. Dominis,
Police Justice Foster, and the leading
members of the bar.
EVENTS THIS EVENINC.
Drill Lclciouoku Guards, at 7:30.
English literature class,! Y. M. C.
A., at 7 :30.
Honolulu Commando ry No. 1 K.
Drill Co. A - Honolulu Rilled
Moonlight, concert at Emma
Square, at 7:30.
BY L. J. I.KVKY.
At 12 o'clock noon, at salesrooms,
choice California wheat haj", bran,
middlings, rolled and whole barley
and oats, all in prime order.
At a meeting of the Myrtle Boat
Club held last evening the following
officers were elected :
A. G. M. Robertson President
W. C. Wilder, Jr. . . .Vice-President
Gardner K. Wilder. . ." . . -Secretary
Chas. T. Wilder Treasurer
James L. Torbert Captain
Trustees A. W. Carter, W. E.
Rowell and Hugh Gunn.
Mi-ssrs. S. B. Dole, W. O. Smith,
II.' Walters, W. C. Parke aud N. B.
Emerson were elected members.
At noon to-day Auctioneer Has
singer of the Intel ior department,
sold the following lots on the block
bounded by Beretania, Young and
Keeaumoku streets, Kulnokahiia,
subject to 10 feet being taken off
for widening of Beretania streot:
. A 8400, B $100 and D 401 to J.
F and G 100 each toll. Mc
Millan. K, L, W and XS 100 each to Mrs.
J. M. Whitney.
M and N 405 each toLcviKaiama.
U and V 8 100 each to E. D. Bald
win. S for 8 100 to Cecil Brown.
SUPREME COURT-AT CHAMBERS.
UKKOKF. PKKSTON J.
TiiujibDAY, July 11th.
Tn re estate of Kainapou (k)
late of Kalihi, Oaliu, deceased, in
testate. Petition of J. W. II. Wa
hineaua to have letters of adminis
tration issued to W. C. Achi. Or
dered that letters of administration
be issued to D, Dayton under
81,000 bond. W. C. Achl for Pe
titioner ct al; J. L. Kaulukou for
Lahaina a relative; J.M.Pocpoeand
A. Rosa-for the Widow.
The Hawaiian Band will give a
public concert this evening at
Emma Square commencing at
7 :30 o'clock. Following is the pro
gramme: TAUT I.
Cornet Polku Love aud Truth
Miserere II Trovutorc Verdi
Selection Patience, Sullivan
Million, l'mi Alual. Kanlolaul.
I'AltT II. '
Medley Bouiiuet of Melodies
M ey idles
Iturlccuua A Comical Conlest.Godfiey
Fantasia Echoes of Ihu l'oiest
Medley German Marches. Leldengliiu.
F YOU WANT A SITUATION,
. advertise in the "Daily liulletlu."
SUPREME COURT-JULY TERM.
UKFOItE M'CULLT J.
Tho King vs. J. R. Robertson.
When this case was readied on
tho calling' of the calendar the first
day of the term His Excellency Attorney-General
Ashford said that he
asked leavo lo enter a nolle prosequi
or that ho desired tot)r moved to
enter a nolle prosequi or to that ef
fect, the prcclso words used not be
ing then noted, giving as a reason
therefor the absence from the king
dom of ono Louis Magoucy whom
he styled tho prosecuting witness,
Tho Court responded that it
would take the matter of granting
leave to enter the nolle prosequi un
der advisement and upon the follow
ing day announced that it did not
deem the absence 6f this witness a
sufficient reason for not bringing the
case to trial if ho were not the sole
witness on which tho case depended,
which was not alleged, and there
fore, declined, leave of Court for the
entry of a nolle prosequi.
Thereafter, Alfred S. llartwell,
Esquire, requested the Court that
he be allowed to appear in this mat
ter. On the Cth of July Mr. Hart
well presented argument to tho
Court as "Counsel for the Attorney
General, on the right of the Attorney-General
to decline to prose
cute." Kor the complete uiiderslahdingof
the position taken by tho learned
counsel for the Attorney-General,
his brief is here given in full. Tile
printing of the brief here is omitted
for want of space.
nr Tin: court.
The proposition of the counsel for
the Attorney-General that at the
common law the Attorney-General of
England and of Slates which have
adopted this part of the common
law has the right upon his sole res
ponsibility to enter a nolle prosequi
is not doubtful and has not been
questioned bj' this Court.
But the common law is not in
force as such in this kingdom. This
is not an English colony which has
brought out the law of England to
be in force hero except as modified
by express statute. The law of this
country is found in our enacted sta
tutes and in the precedents estab
lished by decisions of our Supreme
Court, in which it is allowed, Sec
tion 823 of the Civil Code, "to cite
and adopt the reasonings and prin
ciples of the admiralty maritime and
common law of other countries and
also of the Roman or civil law so far
as the same may be founded in jus
tice and not in conflict with the laws
and customs of this kingdom." This
doctrine has been frequently ex
pressed by the Supreme Court.
This part of the common law has
not been enacted nor adopted here,
nor could a duty and power of the
Attorney-General be imposed or as
sumed or withdrawn upon consider
ation of what was the law of other
The uniform practice of the Su
preme Court and of the Circuit
Courts has been that the Attorncy-ney-Gcneral
by himself or his de
puty, when desiring to nol. pros, a
case after Indictment found, asks
leave of the Court that it may be so
entered, giving the Court or the pre
siding justice some satisfactory rea
sons therefor. These reasons are
not always given publicly in the
Court. They arc frequently pre
sented to the Judge in his ofllce, and
upon the motion being made in
Court, the Court in response some
times states the reason given, and
sometimes merely says that for sa
tisfactory reason given the nol. pros,
may be entered. I state this to 'be
the custom of the Court upon my
own knowledge as a Justice for
twelve years and as a deputy of the
Attorney-General for four years, and
upon innuirv of tnv brethren on the
Bench, two o'f whoin have held the
office of- Attorney-General, and who
say that the practice lias been uni
formly as I have stated it.
Our statute of Criminal Procedure
(Act of '7G, C. L. p. 338) provides
for tlfc discharge without prosecu
tion of persons imprisoned under
committal for trial for any offense,
by the Attorney-General's granting
a certificate to the Justices or a Jus
tice of the Supremo Court that he
declines to present an indictment in
the specified case, whereupon the
Justice or Justices siaU thereupon
issue to the Marshal a warrant of dis
charge of such person from custody.
This statute was enacted in 187G,
and as it provides only this method
of discharge upon the sole respon
sibility and authority of the Attorney-General,
1 think it may bo in
ferred that the existing practice was
not intended by the Legislature to
be varied in other respects.
The Court has control over a con
tinuance of a case by Section 34 of
the Criminal Procedure Act of 1870,
"If the Court before which any per
son is indicted shall, upon the appli
cation of such person or otherwise,
be of opinion that ho ought to bo
allowed further time to plead, etc.,"
the Court may grant further time or
continue to another term, certainly
without the control of the Attorney
General. Section 13 of the same Actgivea the
power to the Court to change tho
venue of any criminal proceedings
to any other Court of Record, for such
reasons as the justico of tho case
may require, and subject to such
conditions us the Court may in its
discretion impose. In regard to till
which the Attorney-General would
be heard but tlio decision and con
trol would be of the Court.
Tho Act of 18GG, now in force, de
fining tho duties of the Attorney-
General (C. L. p. 816) requires him
to be vigilant and active in detecting
offenders against the laws and to
prosecute them with diligence. The
law (Sections 1' and 2 of the Act f
187G) requires the Attorney-General
to present the indictment before
the next ensuing term nftcr the
commitment to the Judge who shall
after examination certify upon each
bill of indictment whether he finds
the same a true bill or not.
What is the examination which
the Judge is required to malco?
There is no grand juiy bore and
to some extent the Judge performs
its functions. The evidence taken
before the committing magistrate is
submitted to him, and he hears
statements from and makes inquiry
of the Attorney-sGenerjiHo the ex
tent of ascertaining if it is a case
which: ought to be 'tried. ' In the
supposablo case of its appearing
that the evidence was frivolous and
entirely unsupportlng the charge, he
would not find it a true bill,, and the
accused could not be put on trial.
Or iu the stipposablc case that the
evidence being examined showed a
case, say, of embezzlement when the
indictment charged forgery, he
would not approve the indictment
Again if tho form of the indict
ment was obviously defective though
not charging a different offense
frourthat presented in the evidence
he would probably not find It a true
bill. The Court's approval of the
indictment as to form in no wise
precludes or prejudices any showing
by defendant's counsel that the in
dictment is faulty, and motions to
quash or demur.
The Court's approval of the bill
as being founded on evidence in no
wise identifies the Court with the
prosecution. I say this without
hesitation on the' part of every
Judge living and dead who has oc
cupied this Bench.
Examining the statutes previous
to those now in existence above re
ferred lo the first is the statute of
184G which organizes the executive
departments, and by which the office
of Attorney-ljcneral was first con
stituted and his duties prescribed
(pages 2G4 et scq., Section VIII.),
prescribes that every prisoner com
mitted for, trial shall be arraigned
upon an indictment allowed by the
judge. And (Section
IX.) after plea the 3aid Attorney
General shall, unless a postponement
be granted for cause by the Court,
proceed to make good by proof all
or any of the counts in said indict
uieut. So it appears that the Attorney-General
had not the sole and
exclusive control, now claimed, of
the prosecutions, for he could not
continue a case unless by leave of
the Court granted for cause shown.
An absolute power to continue a
case, without cause shown and with
out leave, is equivalent to a power
lo continue and not proBecutc at all.
This he had not, but was command
ed by the law to prosecute.
In a single instance under this
btatute was the power given to the
Attorney-General to enter a nolle
prosequi. (Section IH.) "When a
writ of habeas corpus shall have
been issued by any Court of Jus
tice, to inquire by examination of
witnesses in to the cause of tho legality
of the imprisonment of any alleged
delinquent or criminal awaiting his
trial the Attorney-General
shall attend to see that the alleged
delinquent or criminal be not
enlarged without just cause. He
shall represent the prosecution iu
all such cases and ho may, when the
public interests require it, enter
nolle prosequi against a suspected
person." This statute is nearly
equivalent to the statute of 187G
above cited. The rule of expr&isio
unius est exclusio altering well ap
plies here. The authority is given
expressly in a defined instance, viz. :
of prcliminarj" inquiry for commit
ment and is not given otherwise.
The instance allowed is of a case
not yet under indictment found.
The general mandate of the law is
that the Attorney-General shall pro
secute. By a joint resolution of the Legis
lature in 181G subsequent to the
passage of the organic acts in the
same year, authority is given the
Cabinet to appoint other public
prosecutors, and to Iho Judges
of the Superior Court to ap
point district attorneys, pend
ing the appointment of a new Attorney-General
the then Attorney
General, Mr. IMcord, it appears was
about lo leave the kingdom and his
office was not filled.
In 185!) (Civil Code, Sections
1080-10D.O) the law provided only
for district attorneys, an Attorney
General not being constituted by the
Constitution of 1852. These district
attorneys were appointed by the
Justices of the Supremo Court for
each judicial circuit of the Kingdom.'
They gave bond to tho Chief Justice,
they were commissioned for the term
of two years, unless sooner removed
by the Justices of thu Supremo
Court. They were required to prose
cute offenses with diligence. No
mention is made of a right to nolle
By statute iu 18G2 the system of
having an Attorney-General was re
stored, lie was appointed by the
King for a term of two years unless
sooner removed by the King. His
duties were prescribed to be those
which hud been performed by the
district attorneys in Sections 1080
1095. No power is granted to nolle
By the Constitution of 18G-1 an
Attorney-Genera! was established,
and he was made a member of the
Klng's Cabinet (Art. 42); and
18GG nti Act was passed defining his
duties. It is almost throughout in
the same words as the Act of 18G2.
His duties are again referred to
Sections 1080-1095. The Acl would
seem to havo been passed solely to
stale his position as "being appoint
ed by virtue Of au article of the Con
stitution," but although thus placed
for the first time under tho Consti
tution and made a member of His
Majesty's Cabinet, his duties in re
lation to prosecutions, and his status,
rights, privileges and powers in the
com Is aro unchanged from those of
the officer who was created by stat
From this review of all the statutes
touching the rights and duties of the
Attorney-General, I am of the opin
ion that the procedure which I have
staled tSTio the custom of the Court
and of the Attornoy-Gcneralf Is iti
accordance with our law, and accords
with the interpretation hitherto gi"en
by the Court and the Attorneys-General.
It is'a well established precedent
of practice based on the law. I can
not set it aside. If it does not now
and further commend itself thu Leg
islature can enact a statute authoriz
ing another procedure.
The counsel for the Attorney
General says in argument: "If the
judicial power can be extended to
requiring the Attorney-General
to prosecute nny speci
fied case on penalty of fine or im
prisonment this would not permit
the exercise of cxecutivo and judi
cial powers lo be preserved dstinct
it would annul the discretionary
and voluntary exercise of executive
power, so far as the Attorney-General
is concerned." This in my
view is a misapprehension of the
matter in discussion.
The Court has not ordered the
prosecution of this case. It cannot
and it will not do so. It has simply
refused to approve and allow a mo
tion for nolle prosequi upon the
It has not and will not "fine or
imprison an Attorney-General" for
contempt by reason of not prosecut
ing a case.
It will be observed that I do not
agree iu terms with the statement in
the opening of the argument of
counsel "The Attorney-General
having nol. pros'd the case
the Court said its consent was
rcquircu which it refused to give."
The Court said it would take time
to consider (the reason offered) and
it could not treat the motion as
made otherwise than in accordance
with the established precedent ol
practice and procedure. This differ
ence in statement is however only
the difference which constitutes this
controversy on the part of the Attorney-General
and his counsel. It is
not a question of veracity as to facts.
Having thus given thu opinion of
the Court upon the abstract question
argued by counsel, und holding
against his contention, and he hav
ing made no argument addressed to
the discretion of the Court upon its
previous ruling to grant leave to
nol. pros, the case of Robertson,
that ruling might, stand. But as
this particular case has been vir
tually brought up by allowing the
further argument to be madel have
reconsidered that ruling.
J have examined the evidence
given in the previous trial, except
ing that of Magoney the absent
witness. There are six witnesses
besides him. On their testimony, if
given in ' u magistrate's court, I
should find a true bill of indictment.
I express no opinion upon tho pro
per or probahlu result of a trial. It
is only an opinion that it is a case
to be put on trial.
But this the Court cannot order.
Ifwhen it is called for trial, the
Attorifey-General. being present in
person or by deputy, does not pros
ecute, it will stand not prosecuted
in fact,. but without tho entry of
nolle prosequi. The Attorney-General
will take his own course.
If it shall proceed to trial, I will
ask one of my brethren on the Bench
to hold the trial, not because I deem
myself to have, or to have indicated,
any bias in the defendant's case, by
withholding ny concurrence to dis
missing him without trial, but be
cause by the collision which has
arisen from. this case, between the
Court and tho Attorney-General, a
sensitive Condition of public feeling
has been induced, under which it
mighj. be imputed that my rulings
were over strict against the defend
ant, urging his conviction, or were
too favorable from fear of the other
imputation. L. McCuu.r,
Justice Supreme Court.
July 11, 188J.
When the foregoing had been
read the Court said: Ten minutes be
fore my coming into Court Air.
llartwell saw me in my chambers,
nnd being without information of
what the decision was, desired me to
make a statement. I thought he
could make it more accurately and I
ask him to do so.
Air. llurtwell I desire to state
that tho Attorney-Gcueral had seen
inc before and deBircd mo to inform
the Court that the prosecution
would go on with the case. Mr.
Ashford's deputy informed mo that
air. Ashford desired the case to go
on and defendant's counsel are pre
sent in court. In regard to the sug
gestion that the Court desired one
of its brethren to preside at thu trial
I desire that the Court itself shall
sit at the trial. I think the interests
of justico will be the belter ob
served. Mr. Neumann for the defendant
I shall ask that the Court.sit, as
iuj wo thiukit Ueulirely free frombias,
" TEMPLE OF FASHION,"
CORN Kit HOTEL &
Over 1,000 Pieces of While i teiJiii)ii-
Torchong Laces, Oriental Laces. . .
Also, Lane Lies of Lace TrimiisH
WILL BE CLOSED OUT AT AN
Qicat Bargains can be obtained by calling at tho Tomplo of Fashion for (lie
The Sale will Commence Monday, June 17.
THE " ARCADE,"
15 & 77 Fort St EGAN
The Balance of Our Splendid. Stock will ho
Sold during the Month of June v -
AT -as- PER-CENT- BELOW - COST
HOLLISTEEi & 4X)..
lOD JPOIIT STREET, IIOXOIiULU.
ss & so
Wholesale & Retail. Boots & Shoes.
Correct Styles 0F Latest
B. E. EHLEES & (XI
EUROPEAN and AMERICAN '
DRY and FANCY GOODS!
N. 11. On and after May
of our DroHimakiug ltoonu.
Corner Hotel & Fort Streets.
& CO Honolulu, H..I.
TIL1X KVKK -:-
Offered to the Public
. U. SMITH, A(rent.
15th, MISS CLA.RK will have charfo