Provisional Government v. Mossman ( 1894 )

Opinion of the Court, by

Bickerton, J.

The defendant was employed in the branch post office at Makawao, Island of Maui, as an officer of the Hawaiian Government, in the postal department of said Government, the said office being a branch of the Department of Finance, the Postal Savings Bank and the Money Order Office. At the June Term, 1893, of the Circuit Court, of the Second Circuit, an indictment was presented charging the defendant with the embezzlement of $65, the property of the Hawaiian Government; the plea was reserved, and the case continued until the December Term, 1893, at which term two other indictments were found and presented, one charging the defendant with the embezzlement of fifty dollars, and the other charging him with the embezzlement of three hundred and ninety-nine and 48-100 dollars, both sums being money, the property of the Hawaiian Government, the plea to both these indictments being reserved. The Attorney-General moved the Court for a change of venue to Honolulu in all three cases, giving as reasons therefor that material and necessary evidence on behalf of the prosecution in the said cases is contained in the records and books of the Postal Savings Bank and in the Money Order Department of the General Post Office in Honolulu, withoxxt which evidence a fair and impartial trial of said cases could not be had, and which said books and records coxxld not be produced at the trial of these cases before the said Circuit Court, for that it would be detrimental to the public service and contrary to pxxblic policy, that said books and records should be removed from said Honolulu. The Court granted the motion, and ordered that the place of trial of these cases be changed from the Second Judicial Circuit to the First Judicial Circuit, and that the records of the said case be transferred to said Circuit. To this ruling and order the defendant, by his counsel, excepted, and the matter now comes here on a bill of exceptions, allowed by the Circuit Judge of the Second Judicial Circuit.

Under the statute, the Act of 1876, to Eegulate the Practice and Procedure in Criminal Cases, Section 13, page 341, Compiled Laws, Circuit Courts are authorized in their discretion to order that the place of trial of any criminal case pending before the Court be changed to some other Circuit. The Judiciary Act, Laws of 1892 and 1893, page 105, provides that the discretion may be exercised upon satisfactory proof that a fair and impartial trial cannot be had * * * and after parties shall have had opportunity to be heard.

A full hearing was had and the defendant filed an affidavit setting forth inter alia “ that to the best of his knowledge and belief the accounts between the said central office and said country office'are based upon and taken from the reports sent to the central office from said country offices, and especially so in reference to accounts connected with the Money Order and Savings Bank branches of the Post Office Department; that all accounts in the books of the Postmaster General, regarding the transactions in the Money Order and Savings Bank departments of the post office at Makawao, Maui, are based upon the reports from said Makawao post office, the original entries of which were entered and appeared in the books of the postmaster at said Makawao.” This may all be perfectly true and yet it might be necessary to produce the books from the central office. The Makawao books might show that all the money received there had been forwarded to the Honolulu office and might on their face appear perfectly straight, but on their being compared with the books of the central office it might appear that such remittances had never been received. In fact, all the business of these branch offices centers in the central office and on no account should these books be allowed to be out of the reach of the central office at any time. Naturally they are required constantly for reference, not only as regards matters at Makawao, but all over the islands, and business with the public in general. Another and most important reason why the records should not be taken to the island of Maui is the risk of loss, destruction, or damage. We are most decidedly of the opinion that the moving of these records and books to Maui would be detrimental to the public service and contrary to public policy.

This was a matter in the discretion of the Circuit Court, and the only question for us is, did the Court abuse its discretion in granting the motion. We are of the opinion that there was no abuse of discretion and that the motion was properly granted.

Attorney-General W. O. Smith, for prosecution. V. V. Ashford, for defendant.

The exceptions are overruled.