Newspaper Page Text
THK PACIFIC COMMERCIAL ADVKKTISKK: HONOLULU. AUGUST lt, 1S9.
ing Sees. 1145, 1040 ami lfiTr, of the Civil Laws, and conse quently that the Circuit J udge did not have jurisdiction to i-sne the writ, in this case, But the law lias since -en amended so as to confer such jurisdiction Uhu the Circuit .ludires. Civ. L. Sc. 1077. On behalf of the petitioner it is contendc!. first, that in.: stat ute (Civ. J. Sec. T70) under which he was mvicted is in on ilict with the finst part of Article ;: of tin- Constitution which provides that "Each law shall emhraee hnr, one subject, which shall he expressed in its title,'' it being contended that the statute emhraees at least ten subjects of which only two, namely, vag rants" and ''disorderly persons" are expressed in the title. The. section (370) under consideration is a part of "Chapter :i7" entitlel "Vagrants DL-orderly Person-"' of the Penal Laws which is a compilation never enacted as law, though in so far as it correctly sets forth the law it may 1m; referred to in judicial pro ceedings without reference to the original law. Act 24, Laws of 1898. It is Sec. 1, as amended, of the chapter of the same num her and title of the Penal Code. The amendment was made by Act 30 of the Laws of 1S0G, entitled, "An act to amend chapter XXXVII of the Penal Code relating to vagrants and disorderly ersons, and repealing Chapter III of the session laws of 1S70, and Chapter XL of the session laws of 1SS0 relative thereto." The title of 'this amendatory act is sufficient. Its object was to amend Chapter XXXVII of the Penal Code relating to vagrants and disorderly ersons and that object is expressed in its title. And as to the title of Chapter XXXVII itself of the Penal Code, Article 03 of the Constitution does not apply to that, because that chapter is not a distinct law bv itself and has no title within the meaning of the constitutional provision. It. is but a portion of the Penal Code, which is a comprehensive law, the title of which is broad enough to embrace the subjects covered by Chapter XXXVII and its amendments. See Republic r. Parsons, 10 Haw. 001, and cases there cited. It will therefore be unnecessary to consider whether the section of the law under which the peti tioner was convicted embraces any subjects not covered by tho words "vagrants" and "disorderly ersons," and whether, if so, the section would le unconstitutional if it constituted a separate law by itself. Secondly, that the Krtion of Section 370 under which the peti tioner was charged and convicted is unconstitutional because it imposes on defendants the burden of proving their innocence. This portion provides for the punishment of "any person who is found by night without lawful excuse (the proof of which excuse shall bo upon such person) in or upon any dwelling house," &c. Defendant relies on the case of In re Wong ITanc, 108 Cal. G80. In that case the ordinance provided that, "It shall bo unlawful for any person to have in his possession, unless it bo shown that such possession is innocent or for a lawful pur pose, and lottery ticket," tv;c. The court held that the legislature could not constitutionally overthrow the presumption of inno cence and that since that portion of the statute which purported to do so was inseparable from the rest, the wholo had to fall. The court held that the qualification as to proof was attached to the definition of the offense and "expressed, the opinion that if the offense had been defined as consisting of the possession with a criminal purpose the case would have been different. The present case differs from that case in that rcseet. Here the nl sence of lawful excuse is coupled with the being found at night in a dwelling-house, etc., as part of the definition of theioffensc, and the clause relating to proof is an independent provision which, if unconstitutional, may be discarded without affecting the validity of the remainder of the law. "Wo need not therefore express an opinion as to whether the clause relating to proof is constitutional or not. Thirdly, that since the petitioner was charged with the eom mission of only two of the acts described in Section 370, it was error to set forth in the mittimus, as was done in this case, that the defendant was convicted of violating Section 370, czc.y which describes a large number of acts. Sec. 370 does not purport to describe or name different general offenses. It merely provides that any person who does any one of a number of enumerated acts shall le punished, v.vc. Thus, in a sense, the defendant was guilty, as set forth in the mittimus, of violating Sec. 370. He violated it in two respects, for he was charged with having com mitted two of the acts enumerated and was found guilty as charg ed. Put even if the different acts enumerated constituted differ ent genend offenses, still the mittimus would not be void on its face, for, so far as appears there, the defendant might have been uiiltv of all the offenses described, in the section. There is but one punishment prescribed in the section. The. alleged defect, if it is a defect, in the mittimus is made to apjnvir only by reference it appeal's precisely what the defendant was found guilty of and to the record, but the moment a reference is made to the record that the court had jurisdiction of the offenses charged and to ren der tho particular judgment. See In re Rhodes, 0 Haw. 343:7 re Piipiihini, 7 Haw. Do: Ex Parte Miirrap, 43 Cal. 455. Fourthlv, that Sec. 370 was repealed by implication by Act 03 of .the laws of 1S90 and consequently that Act 3G of the laws oT 1890 which purported to amend it (Sec. 370, P. L., i. e., Ch. 37 of the Fenal Code) is null and void because the- law which it pur ported, to amend was no longer iir existence. . In our opinion Act 03 of the laws of 1890 did not repeal Sec. 370, Penal L., or Ch. 37, Penal Code. Act 03 is entitled "An Art. supplementary to Chapter XXXVII of the Penal Code,"' &c, and its substance a? well as its title shows it to be supplementary and not rubstitu tional. A reference to the two laws will male this so apparent j that wc need not elaborate. The decision of the Circuit dudge remanding the pri-onor to the custody of the sheriff is atHnned. W. V. iri.ve. I'attl Xriutmnii and T. he HuJt for the. ivri tioner. Attonuy-deneral II. Cooper, heputp A ttorneij-i ietn nil v. P. Dole, and (!. '. Little for the respondent. IN THK SUPREME COUKT OF THE HAWAIIAN ISLANDS. .Jim: Tf.km. 1M1. JX THE AIATTKU OF J1EXKY E. COOPER, AX ATTOK- XICY-AT-LAW. OnioiNAi.. SriJMiTTKD Junk 1MM. Dkcidkd Airorsr IiTi)i, C.J., Fkkak am AVuiti.no, .II. Charges against the respondent as a member of the bar held not sus tained by the evidence. The acts proved to have been done by the respondent were done by him in his capacity as Attorney-General and were not of such a nature as would justify proceedings against him as a member of the bar. The Attorney-General cannot be held to account by the court for his official acts done within his legal powers. OPINION OF TIlK COURT BY FREAK. J. This is a complaint, by A. S. Humphreys charging Henry E. Cooper with malpractice and unprofessional conduct as a member of the bar and praying that such order be made as under the pleadings and proof may be proper. The complainant as well as the respondent is a member of the bar. The respondent is also the Attorney-General of the llepublic. The complaint is carefully drawn with a view to showing mis conduct on the part of the resondcnt as an attorney at law and not as Attornev-General. The substance of the charge is that the respondent retained and intended to retain control of both sides of a criminal case and that he abridged the professional rights of the complainant who was employed to prosecute the case by threatening to take the case out of his hands if he should raise the objection in court to the appearance of the consul for the defense who was an employee in the Attorney-General's office. The res pondent answered setting forth his version of the story and claim ing that he acted as Attorney-General and in the utmost good faith, and pursued a course that was proper and consistent with his duties as Attorney-General and as an attorney" at law and that the complaint was not justified by the facts and was malicious and scandalous. At the hearing a number of witnesses were examined and con siderable latitude was allowed in the testimony, much of which it will be unnecessary to dwell upon, such as that relating to opin ions upon the nature and moral quality of the acts of the respon dent and that in regard to the writing or inspiring of articles by the complainant for publication in the newspapers. The facts appear to be as follows: In April last one Carreira. a Portuguese interpreter and collector in the tax office, attempted to collect personal taxes of one Ah Me, a Chinese servant of Mr. A. T. Atkinson, at the latter residence in this city. The China man refused to pay on the ground that he wa under twenty years of age and therefore exempt. The officer contended that he was twenty-four years of age and, being commissioned also as a police officer, arrested him upon a wan-ant. Mr. Atkinson and his fam ily, believing that an unjustifiable assault and battery had been committed, were greatly incensed, and his son, who was- an assist ant to the Attorney-General and whose duties were in part those of a prosecuting officer, procured the arrest of Carreira on a charge of assault and battery. The case was called up in the District Court the next day and continued at the request of the tax assessor. Mr. Atkinson, the son, ap2eared for the prosecution, but, either because he heard that counsel was to be engaged for the defense or because ho thought the Minister of Finance, in whose department the tax bureau is, considered the case one that was not well founded and ought not to be prosecuted or because he thought he ought not to appear in a case prosecuting a government officer, he asked the Attorney-General if he might engage private counsel to prose cute. The Attorney-General consented. Mr. Atkinson then en gaged complainant. This he did, not as prosecuting officer, but on behalf of the Chinaman and with private funds. Mr. Atkin son also, feeling that his action in instituting the case was disap proved, told both the Minister of Finance and the Attorney-General that, if they did not approve his action, he would bring his witnesses to the tax office or the Attorney-General's office res pectively for examination and that the case in court might be dropped, lie was told by each that it would be better to have the ease decided bv the court. Mr. Atkinson did not appear further in the case and was not present at the trial which was conducted for the prosecution by Mr. Humphreys. Meanwhile Mr. Shaw, the tax assessor, called on the Attorney General and stated that he had been sent by Mr. Damon, the Minister of Finance, to request him to defend the case against Carreira and that the caso was an important one as it was a com mon practice among the Asiatics to attempt to avoid paying their personal taxes bv claiming that thev were under au and that if Carreira should lo convicted in this ease, it would increase the difficultv of collecting such taxes from tlio-c ela-c. The Attor-ney-General replied that he could not defend the cac'as he had sanctioned the prosecution, and Mr. Shaw then said that if that were so the -Minister of Finance, wished him to furnish an attor nev. Tho Attornev-General said that lie would let Mr. Shaw know. It then occurred to him that he might avoid the employ ment, of outside counsel at .extra expeiiso and that Mr. Welx'r might take charge of the defense if he were not too busy, Air. Wc-bor being then employed in the Attorney-General's depart ment nominally as stenographer but really for the most part as a private assistant to the Attorney-General in the preparation of briefs and the looking up of matters of law on questions referred to the department. Accordingly ho told Mr. "Weber that Air. Damon wished, assistance in the case and asked Mr. Welcr if he had any objections to looking into the matter. Air. Weber re plied that he had not. The Attorney-General then told him that he, the Attornev-General, could not examine anv of the witnesses or take any part in the case. Air. Weber then assumed entire charge of the caso, and what stes he took in it the Attorney-General never knew afterwards. Air. Atkinson, feeling that the engagement of counsel for the defense by the government was a rejection ujwn him, complain ed to the Attorney-General about Air. Wear's appearing, but the Attorney-General told him that it was not intended as any re ilection upon him at all and that Air. Weber was to act for the Alinister of Finance and would not represent him, the Attorney General, in any way, shape or manner. Air, Humphreys also, tq on meeting the Attorney-General at a restaurant, threatened to publish him in the papers and charged him with interfering, as he considered it, in the case. The Attorney-General replied that he did not view it in that way but that if he, Air. Humphreys, considered it an interference, he, the Attorney-General, would see Air. Damon and ask him to employ some one else. The Attorney-General then went to Air. Damon's office but did not find him in and was informed, that he would not be in again that day. Knowing that the case was to come up the next day and being verv busy with certain murder cases, the. Attornev-General then concluded not to make any change and upon meeting the marshal just outside of Air. Damon's office told him that Mr. Humphreys had pitched into him and threatened to publish him in the papers, that he considered there was nothing out of the way in Air. Weld ers trying the case at the request of Air. Damon and that if AIiv Humphreys objected to his appearance he, tho marshal, should exercise his prerogative and take the case out of Air. Humplireys" hands and prosecute it himself. Air. Humphreys expressed his views to Air. Weber also and requested him to state the matter to the Attorney-General. Air. Weber did so and was told by the Attorney-General that he, Weber, represented, the Department of Finance and not his office in any way and that he was to have complete charge of the case and carry it on as he saw fit. At the opening of the District Court and shortly before the caso was called, the marshal told Air. Humphreys that Air. Weber would appear for the defendant as representing the Finance D partment and that if he should object to Air. Weber's appearance, he, the marshal, would take the case out of his hands and prose cute the case himself. Mr. Humphreys then said that he would not prosecute- the caso, but finally concluded, to do so upon the marshal's advice and upon his representation that he, Mr. Humphreys, had prepared the case for Air. Atkinson and that the latter was not then present. The case was then tried. Air. Humphreys appeared for the prosecution and had full control ex cept as to the matter of raising the objection to Air. Weber's ap pearance. Air. Weber appeared for the defense stating that he appeared for the Finance Department, and had full charge of the defense. The court found that the tax officer in making the ar rest had used a little more force than was necessarv and at the re quest of the prosecution imposed a nominal fine;. Such are the facts. In view of the high official position of the respondent and the grave nature of the charges preferred this caso has assumed, considerable prominence and has been given much attention bv counsel. Afuch has been said in regard tothe conduct of the complainant, especially in connection with his inspiring of articles for the news papers. His counsel concedes that he was not justified in pursu ing such a course after having gone, through counsel, to the court and after the court had issued an order to show cause. AVe shall not comment upon his conduct in this or other respects but turn our attention to the respondent in the case. As already said, the complaint was carefully drawn with a view to showing malpractice and unprofessional conduct on the part of the respondent as a member of the bar. But so far a3 appears, he acted throughout as Attorney-General. Xo doubt a member of the bar may jerform acts in some other official capacity or even in a private capacity of such disgraceful, immoral or criminal character as to show him to be unfit to continue longer a member of the profession, and for such conduct he may be held to account by the court even to the extent of disbar ment. But it is not contended that the rcsiondent in this case was guilty of misconduct involving moral turpitude, or, perhaps, any acts of a character so disgraceful as, if not done in his pro fessional capacity, would warrant action by the court against him in his professional capacity. If counsel do intend to go so far as to make such a contention as that last mentioned, we must hold that the facts do not bear them out. It is indeed not entirely clear just what the theory of counsel for the complainant is. An attempt is made to show the respondent guilty of misconduct as a member of the bar, and yet in spite of all efforts to adhere to sucli a theory, it has been found impossible in both tho testimony and.