22 Haw. 469 | Haw. | 1915
OPINION OP THE COURT BY
Upon the petition of Charles H. Rose a writ of prohibition :was issued against Hon. C. W. Ashford, first judge of the cir'cuit court of the first circuit, restraining him from proceeding
“in the circuit court or the eirst judicial circuit,
TERRITORY OR HAWAII.
January 1915 Term.
“in the matter or “charles h. rose.
“order to show cause.
“Whereas, said Circuit Court, (the First Judge thereof presiding,) has been given to understand, by a perusal of the records of this Court, in part, and in part by the statements of witnesses, made in open Court, that on the 19th day of February, 1915, at 4:40 o’clock in the afternoon, there was issued, out of said Circuit Court and under the Seal thereof, and under the hand of one of its Clerks, a certain Bench Warrant or Warrant of Arrest for the arrest of John T. Scully and Henry B.. Lewis; and that said Bench Warrant, addressed to the High Sheriff of the Territory of Hawaii, or his Deputy, the Sheriff of the City and County of Honolulu, or his Deputy, was forthwith thereafter delivered to said Sheriff for service and execution; and that said Henry B. Lewis, so named in said Warrant, was not arrested until the 22nd day of February instant, although he, the said' Henry B. Lewis, was, during all of the intermediate period, present and available for the purposes of arrest within said City and County; and that the return of said Sheriff to said Warrant of Arrest inaccurately and erroneously or falsely indicates and avers that said Henry B. Lewis, together with said John T. Scully, was arrested by said Sheriff, in obedience to said Bench Warrant, on the 21st day of February, 1915;
“And whereas, upon said facts being brought to the attention of the Court, the Court directed and procured that said Sheriff, Charles H. Rose, should be immediately communicated with and requested to appear in and before this Court at 1:30*471 P. M. of this present date, being Wednesday, the 24th day of February, 1915, for the purpose of explaining why the mandate of said Warrant of Arrest had not been earlier complied with by him;
“And whereas, said Sheriff, Charles H. Rose, has ignored said request so made of him to so be and appear in Court and explain as aforesaid;
“Now therefore, it is ordered that said Charles H. Rose, Sheriff of the City and County of Honolulu, as aforesaid, be and he is hereby cited and ordered to appear in and before this Court, and before the First Judge thereof, in the Courtroom of said Judge, at 9 o’clock in the forenoon of Thursday, the 25th day of February, 1915, and then and there to show cause, if any he has, why he should not be adjudged guilty of contempt of court, because of the matters and things hereinabove recited, and why, if so adjudged guilty of contempt of court, he should not be punished as provided by law.
“It is further ordered that service of this Order and citation upon said Charles H. Rose, shall be made by the High Sheriff of the Territory of Hawaii, or his Deputy.
“So ORDERED AND DONE IN OPEN COURT THIS 24th day of February, 1915.
“by order of the court
(seal) “J. C. Cullen,
“Clerk of the Circuit Court for the First Circuit of the Territory of Hawaii.”
The contention of the petitioner, who is the sheriff of the city and county of Honolulu, is that that was a void order made without jurisdiction because it was not founded on any formal affidavit or information filed in court setting forth the facts relied upon as constituting contempt of the circuit court on the part of the petitioner. It will be observed that there were three matters set forth in the order to which the sheriff was required to respond, (1) the failure to execute the warrant until the 21st or 22d day of February; (2) the making of a false return; and (3) the failure of the sheriff to appear before the court, as requested, at 1:30 P. M. on the 24th of February. Counsel for the respondent in the present proceeding state that they do
Under the statutes of this Territory it is a misdemeanor for an officer to wilfully and corruptly refuse, neglect or delay the serving of lawful process for the apprehension .of any person charged with an offense whereby such person shall avoid arrest and go at large (R. L. Sec. 3067) and the wilful disobedience or neglect of any lawful process or order is contempt of court (R. L. Sec. 3069). The wilful refusal or neglect of a sheriff in whose hands-a warrant of arrest has been lawfully placed for service to execute the same in accordance with the direction therein contained would doubtless amount to both a misdemeanor and a contempt of the court by which the warrant was issued.
The alleged contempt in this case was not committed in the presence of the court. It was a constructive contempt, though criminal in its nature. The authorities lay it down as a general rule that in cases of constructive contempt it is necessary to give the court jurisdiction to proceed against the contemnor that a formal statement, affidavit, complaint or information stating the facts be filed as a basis upon which an order to show cause or attachment may issue. 4 Enc. Pl. & Pr. 779; 9 Cyc. 38, and cases cited. This-is to make the facts-alleged to constitute the contempt a matter of record for the- information of the court and to apprise the party proceeded against of what he is accused. To this end the courts a-re entitled to the assistance of ’the duly constituted prosecuting officers to whose
It is settled in this ’ Territory that a writ of prohibition
AATe hold that the writ was properly issued in this case and that it should he made perpetual as to proceedings upon the order in question.