CHAPTER 49.

ARRESTS.

§ 543. No arrest of any person shall be made without first obtaining a warrant or other process therefor from some magistrate, except in the cases in this chapter hereinafter provided.

§ 544. Where a breach of the peace or other offense has been com mitted and the offender shall endeavor to escape, he may be arrested by virtue of a verbal order of any magistrate, or without such order if no magistrate be present.

$545. Anyone in the act of committing a crime may be arrested by any person present without a warrant.

§ 546. Whenever a crime is committed and the offenders are unknown, and any person shall be found near the place where the crime was com mitted, either endeavoring to conceal himself or endeavoring to escape, or under such other circumstances as to justify a reasonable suspicion of his being the offender, such person may be arrested without warrant. $547. Policemen, or other officers of justice, in any seaport or town, even in cases where it is not certain that an offense has been committed, may, without warrant, arrest and detain for examination such persons as may be found under such circumstances as justify a reasonable suspicion that they have committed or intend to commit an offense. § 548. At or before the time of making an arrest, the person must declare that he is an officer of justice, if such be the case. If he have a warrant he should show it if required; or if he make the arrest without warrant in any of the cases in which it is authorized by law, he should give the party arrested clearly to understand for what cause he undertakes to make the arrest, and must require him to submit and accompany him to the jail or magistrate. This done, the arrest is complete.

§ 549. In all cases where the person arrested refuses to submit or attempts to escape, such degree of force may be used as is necessary to compel him to such submission.

§ 550. He who makes an arrest may take from the party arrested all offensive weapons which he may have about his person, and must deliver them to the magistrate, to be disposed of according to law.

§ 551. In all cases of arrest for examination, the person making the same must conduct the party arrested before the court or magistrate empowered to take such examination within forty-eight hours after his arrest, except in cases where a longer delay is absolutely necessary to meet the ends of justice.

§ 552. Whenever it is necessary to enter a house to arrest an offender, and entrance is refused, the officer or person making the arrest may force an entrance by breaking doors or other barriers; but before breaking any door he shall first demand entrance in a loud voice, and state that he is the bearer of a warrant of arrest; or, if it is in a case which arrest is lawful without warrant, he must substantially state that information in an audible voice.

NOTE TO CHAPTER 49.

§§ 543-552 are P. C., ch. 49, unaltered. Jurisdiction for arrests, see P. L., ch. 52.

Cases in Hawaiian Reports: Hubertson v. Cole, 1 Haw., 44; In re Flanchet, 2 Haw., 96; In re Kauffman, 2 Haw., 313; King v. Huntley, 2 Haw., 457; In re Jas. Brown, 6 Haw., 704; Re Man Nun, 7 Haw., 463; Re v. Sin Fook, 8 Haw., 186; Govt. v. Caeceres, 9 Haw., 528,

CHAPTER 50.

BAIL.

§ 553. Bail, or the giving of bail, is the signing of the recognizance by the person and his surety or sureties, conditioned for the appearance of a prisoner at the session of a court of competent jurisdiction, to be named in the condition, and to abide the judgment of such court.

§ 554. In all cases where the offense charged is not punishable with death, the accused shall be bailable, but in no others: Provided, That where the offense charged is punishable by imprisonment for life, or for a term exceeding ten years, any justice of a court of record, but no other magistrate, shall have the power to admit the accused to bail.

§ 555. Bail may be taken by district magistrates before committing the accused for trial, but after commitment no one but the magistrate who has heard the case or a judge of a court of record can let a prisoner to bail: Provided, however, That when such bail is not furnished the prisoner shall be committed to prison.

§ 556. Every defendant appealing from the decision of any circuit judge or district magistrate in any criminal or penal prosecution shall remain in the custody of the chief sheriff or sheriff of the island until the term of the supreme or circuit court to which said defendant has appealed, unless he deposit with the chief sheriff or sheriff a good and sufficient bond in a penal sum equal to the fine or penalty imposed upon such defendant in the court below, conditioned for his appearance for trial at the supreme or circuit court as aforesaid. And in all cases where the punishment adjudged by the circuit judge or district magistrate is both fine and imprisonment, or imprisonment only, the chief sheriff or sheriff shall exact from the defendant a bond, conditioned as aforesaid, in the penal sum of not less than one hundred nor more than one thousand dollars.

§ 557. When bail is offered and taken, the prisoner must be discharged from custody or imprisonment.

§ 558. Where the offense is the illegal infliction of a wound, or any other injury that may terminate in the death of the person injured, the magistrate or court can not discharge the prisoner if it appear that there is a probability that death will ensue in consequence of such injury. In this case the party must be committed for further examination until the consequences of the injury can be ascertained.

§ 559. The amount of bail rests in the discretion of the justice or judge, but should be so determined as not to suffer the wealthy to escape by the payment of a pecuniary penalty nor to render the privilege useless to the poor. In all cases the officer letting to bail should consider the punishment to be inflicted on conviction and the pecuniary circumstances of the party accused.

§ 560. Where the punishment of the offense is a pecuniary penalty only, the bail must be greater than the highest fine that can be imposed.

§ 561. No person shall be received as a surety for the appearance of the party accused who does not own or possess property, either real or personal, within this Territory to double the amount of the bail bond. And in case the officer taking the bail shall doubt the sufficiency of such surety, he may compel the surety, either by his own oath or otherwise, to furnish proof of his sufficiency.

§562. A single surety will be sufficient, if he possesses and owns unencumbered real property within this Territory to double the amount for which he is bound; otherwise there must be two or more. A woman can not be received as surety.

§ 563. When the person admitted to bail is a minor or married woman, the engagement shall, notwithstanding, be valid.

§ 564. If, owing to mistake or misrepresentation, insufficient bail has been taken, or if the sureties afterwards become insufficient, the accused may be ordered to find sufficient sureties by any magistrate, and on his refusal he may be committed for trial.

§ 565. In all cases where a magistrate shall either commit for trial or bail the accused, he may cause each of the witnesses who has been examined and has testified to any material fact or circumstance in the case to enter into a recognizance, with or without surety, at his discretion, in a sum fixed by the magistrate, conditioned for his appearance at the sitting of the court at which the accused is bound or committed to appear. If a witness shall refuse to sign such recognizance when required, he may be committed to prison by the order of the magistrate, and shall be confined until he shall be brought before the court to testify, or until he shall give the recognizance.

§ 566. Those who may have become bail for any one may at any time discharge themselves by surrendering him to the custody of the chief sheriff or sheriff of the island in which the court at which he was bound to appear shall sit.

§ 567. The magistrate who shall make any commitment or let any person to bail shall without any unnecessary delay, at the farthest within ten days, transmit to the clerk or presiding judge of the court which has legal cognizance of the offense charged all the complaints, depositions, bail bonds, bonds for the appearance of witnesses and other documents in his possession relative to the accusation.

§ 568. The names of all persons who have given bail or have become bound by recognizance to appear in any court shall be called in open court on the day they are respectively bound to appear, and if they fail to appear before the adjournment of the court their default shall be entered, and such entry shall be evidence of the breach of their appearance bonds or recognizances.

$569. Courts may also, on the motion of the public prosecutor, order the sheriff to arrest and bring before them any person who has been bound by recognizance or summoned to appear and give testimony and who has not attended at the time appointed, and when so arrested the said witnesses may be also fined in any sum not exceeding one hundred dollars for their neglect, and must remain in custody until they give their testimony and are discharged from farther attendance, or until they give such security as shall satisfy the court for their appearance to testify.

§ 570. Witnesses bound to appear and persons let out on bail must not only attend on the day appointed in their respective obligations, but at such other times as the court shall direct, and the obligation continues until they are discharged by the court.

§ 571. All persons charged with criminal offenses shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.

§ 572. If the charge be for an offense not capital in its nature, the defendant may be admitted to bail before conviction as a matter of right, and such right shall continue after conviction in all cases other than those wherein a sentence of at least twenty years' imprisonment may be imposed until the final determination of any motion for a new trial, appeal, exceptions, certiorari, habeas corpus, or other proceedings which shall have been made, taken, issued, or allowed for the purpose of securing a review of the rulings, verdict, judgment, sentence, or

other proceedings of any court or jury in or by which such defendant has been arraigned, tried, convicted, or sentenced. In all cases not capital where the punishment must be imprisonment for twenty years or more, it shall rest in the discretion of the trial court to admit the defendant to bail after conviction. No defendant entitled to bail, whether bailed or not, shall without his written consent be subjected to the operation of any sentence passed upon him while any proceedings to procure a review of any action of the trial court or jury in the premises shall be pending and undetermined.

§ 573. In cases where the punishment for the offense charged may be death or imprisonment for a term not less than ten years with or without fine, a judge or justice of a court of record, but no other magistrate, shall be competent to admit the accused to bail, in conformity with the provisions of this act. In all other cases the accused may be so admitted to bail by any judge or justice of a court of record, or by any district magistrate, and in cases where the punishment for the offense charged may not exceed two years' imprisonment with or without fine, the chief sheriff, his deputy, any sheriff or his deputy, may admit such accused person to bail.

§ 574. Unless otherwise ordered by the court, the bail bond given by any defendant prior to his conviction shall (in cases where bail after conviction is permitted either absolutely or by order of the court) be continued as the bail of such defendant after conviction, and until the final determination of any subsequent proceedings in such cause.

§ 575. Provided, however, That in cases of arrests for the offense of murder, the person arrested shall not be admitted to bail without the consent of the attorney-general, who shall have full authority to refuse bail in such cases.

NOTE TO CHAPTER 50.

553 is P. C., ch. 50, § 1. § 554 is S. L. 1888, ch. 27. C. L., p. 575. 556 is C. C., § 1009. §§ 557-570 are P. C., are S. L. 1892, ch. 32. § 575 is P. G., act 38.

Case in Hawaiian Reports: Re Walker, 9 Haw., 175.

CHAPTER 51.

FINES AND Costs.

555 is S. L. 1876, ch. 16, ch. 50, §§ 4-18. §§ 571-574

§ 576. Whenever a fine is imposed by any court or magistrate, according to law, upon any person, and such fine shall not be paid within ten days after such imposition, or an appeal taken, where the trial is in a court not of record, the court or magistrate imposing such fine may issue an execution for the same, to be levied upon the offender's property, real or personal.

§ 577. When a judgment of fine and costs, or either of them, is not satisfied by immediate payment thereof, the offender so sentenced shall be committed to prison, there to remain at hard labor or otherwise, in the discretion of the court or magistrate, until such fine is paid or collected out of the offender's property as prescribed in the above section: Provided, however, That when any poor convict shall have been imprisoned for the space of one year for fine and costs, or either of them, any two magistrates may order such convict to be brought before them for examination, and if, upon inquiry, they shall be satisfied that he has not since his conviction had any estate, real or personal, with which he could have paid the sum for which he stood committed, and that he is held for no other cause, they may direct the chief sheriff of

the Territory, or his deputy having him in custody, to discharge such convict from prison.

§ 578. Clerks of any court, district magistrates, and other officers who shall receive any fines, forfeitures, or costs imposed or awarded by any court to the use of the Government, shall keep a correct account of the same, with the names of the persons from whom the same are received, and the dates when they were received, and shall pay over the same to the treasurer, and, moreover, once in three months shall render an account of the same to said treasurer.

§ 579. If any clerk or other officer shall neglect to make such payment, or render such account, it shall be deemed a sufficient cause of removal by the power appointing such officer, and the treasurer may sue for and recover of him the amount of such fines, forfeitures, and costs, with interest from the receiving of the same, at the rate of twenty per cent and the costs of suit.

§ 580. If any officer having any person in his custody, by virtue of a sentence of court, for the payment of any sum as a fine, forfeiture, or costs, shall voluntarily or negligently suffer such person to escape, he shall be deemed to have received such fine, forfeiture, or costs at the time of the escape, and shall be held liable to pay over the same with interest and costs of suit, as provided in the preceding section.

§ 581. Whenever a person shall be convicted of an offense under any provision of the penal code of this Territory, his property shall be liable for the costs incurred in his prosecution, and the court or magistrate before whom he is tried may issue an execution therefor.

§ 582. When such costs are not paid by the party prosecuted, or collected out of his property, they shall be paid out of the treasury of the Territory, upon the order of the judge presiding at the trial.

§ 583. When any person shall be sentenced to pay a fine and costs or either of them and to be imprisoned until the same be paid, the time of his imprisonment shall be deemed to discharge the same at the rate of fifty cents a day.

NOTE TO CHAPTER 51.

$576 is P. C., ch. 51, § 1. §577 is S. L. 1870, ch. 26, C. L., p. 51. §§578-582 are P. C., ch. 51, §§ 3-7. §583 is S. L. 1886, ch. 23.

Cases in Hawaiian Reports: R. v. Tong Wo, 5 Haw., 22; Re Apuna, 6 Haw., 737; Re Piipiilani, 7 Haw., 102.

CHAPTER 52.

CRIMINAL JURISDICTION.

PART I.-CRIMINAL JURISDICTION OF DISTRICT MAGISTRATES.

§ 584. District magistrates shall have jurisdiction for the prosecution, trial, and sentence to punishment of any person charged with either of the following offenses, namely: Any misdemeanor, larceny in the second degree and gross cheat; also bribery, where the punishment prescribed does not exceed imprisonment at hard labor for two years, or fine of five hundred dollars.

$585. The district courts shall have exclusive original jurisdiction within their respective districts over all criminal offenses which are within the jurisdiction of police and district courts according to law, or which may hereafter be placed by law within the jurisdiction of district courts. And they shall have power, subject to appeal according to law, to try without a jury, and to render judgment in all cases of criminal offenses coming within their respective jurisdictions: Provided, however, That any person arrested upon a charge of having committed an offense in a district other than that in which he was arrested may elect, upou