16 Haw. 526 | Haw. | 1905
OPINION OF THE COURT BY
On September 15, 1901, in the district court of Honolulu, James E. Fullerton was tried, convicted and sentenced on a
The first question presented for consideration is the effect of the nolle prosequi in the circuit court after the appeal from the district magistrate. In prosecutions instituted in the first instance in the circuit court there is no question but that at any time prior to the impaneling of the jury a nolle prosequi may be entered by the court on motion of the attorney general. See King v. Robertson, 6 Haw. 718; 35 L. R. A. 701, note. So far
As to the contention of the defendant that he has been denied a speedy trial, it is difficult to ascertain from the record what case defendant has been denied a speedy trial of. It could not be of the first indictment for malicious injury because that ended in a nolle prosequi. It could not be the trial' on the appeal from the district magistrate because that also ended in a nolle prosequi. It could not be on the two indictments presented on December 30, because defendant has not even attempted to get a trial on either indictment. Therefore defendant has not been denied a speedy trial.
Defendant’s contention that he has been placed twice in jeopardy is untenable, at least at this time. Only after a trial and a conviction or an acquittal on one of the indictments is had, can the question be raised as to whether defendant can be tried on another of the indictments.
There is no merit in any of the other contentions of the defendant.
While the attorney general had a right to nolle prosequi the first indictment and the grand jury had a right to indict defendant again for the same offense, this course may become vexatious and should not be followed except for good reasons. It may be, and we are inclined to think, that such a course, at least to the extent it was carried in this instance, should not have been taken, but the exceptions cannot be sustained for that reason.
Tbe exceptions are overruled and tbe cases are remanded to tbe circuit court for further proceedings.