The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1869-12-08


by the English Acts, Bills and Charters.
Anything less than this wonld make the pro-
visions therefor in our Constitution and Stat
utes hollow aud meaningless, and would be
contrary to sound rules of legal construction
/ Dusty therefore, be guided by these lights,
and by the decisions of English and Ameri-
can Courts, concerning the law of Babeas
Corpus; and | think the practice Of this
Court has never been opposed to this view.
By the Act of 81, Car. 2, persons commit
ed or detained for any crime but treason or
felony Cif they are not persons eonvicts or in
execution by legal process) have a right to
be brought before the Court on Habeas Cor
pus, and the Court within two days must
discharge the prisoner, "unless it shall ap
pear that he is detained upon legal process,
order or warrant out of some Court that
hath jurisdiction" The true rule to be
gathered from the authorities is, that the
function of this writ does not supersede the
functions of Wriis of Error and Certiorari.
Bills of Exceptions and Appeals The al
legged errors of a trial should be reeonsidered
only by the appellate Court authorized by
law to review them. No power is given,
and perhaps none exists, to review the de-
cision of judge discharging a prisoner ON
Habeas Corpus Hence the necessity of ex-
ercising jurisdiction in such cases with dis
eretiou, and according to established prin-
ciples, The Court will rarely use the Writ
of Habeas Corpus to effect reversal of
judgment rendered by Court of competent
Jurisdiction, the mittimus showing prbna
tdeie legal conviction. The officers return,
or the record brought up on certiorari, ought
to show these legal requirements. If the
process is merely vodable, and not actually
void, it is regarded as good authority for the
confinement of the prisoner, until the judg-
ment shall be reversed by the appellate
Court
The petitioners plea to the officers return,
neither, In legal intendment, traverses, nor
eonfesses and avoids the facts alleged; out it
is demurrer TO the legality of the impris-
Onment Ii is claimed that the imprison-
ment, either at hard labor or otherwise, is
Illegal.
1. Because the mittimus is not duly au-
thenticated as the process of the Court.
2. Because the law does not authorize the
imposing of costs as part of the sentence.
g. Because the mittimus does not order
the Marshal to imprison at hard labor or
otherwise.
T. Because the law gives the Marshal no
discretion or authority to imprison at hard
labor, or otherwise.
The first objection has no force, aud was
in fact not insisted upon. No Statute re-
quires the process to bear teste of the presid-
ing Justice; the seal of the Court with the
official signature of the clerk and the sigma
ture of the justice of the Court who in fact
presided, are sufficient.
The Statute penalty for this offence
is a fine not exceeding five hundred dol
lars, or Imprisonment at hard labor for
term not exceeding six months. A ''flne of
$500, with s77 costs OF Court" is sentence
within this Statute. If the mittimus should
command the Marshal to imprison until
the payment of au extreme fine of
$500 and 81 costs, the Statutes perhaps
might sanction such order. The provision
for the discharge of poor convict at the
" fine, or fine and costs only, or either of
them" for which he shall haye been i'm
prisoned," would seem to imply the power
to adjudge payment Of costs. (sec. g Ch.
81, Comp. Penal Code) So does Sec. 5, ID,
which makes the officer liable il he allows
the escape of any person undergoing "sen-
tence of Court, for payment of any sum as
fine, forfeiture or costs" On the other
hand, Sections and Z h., provide for exc
cution to issue on the convict's property,
for costs, and that If they are not paid by
him or out of his property, they "shall be
paid out Of the Treasury of the Kingdom.
viii not, however, volunteer an opinion
on facts not before me; fsueh case should
arise, it would properly be renewable on
error to the full Court By section 2 of the
same chapter OF the Penal Code, "wheu a
fine is not paid Immediately following the
offenders conviction, he shall be committed
otherwise, in the discretion Of the Court or
magistrate, until such fine is paid, or col
lected out of the offenders property" 1t
may be inferred from this mittimus that the
fine was not paid; but imprisonment at hard
labor can not be inferred. Nothing can be
presumed against the liberty Of the person.
The discretionary power of the Court to com
nit the offender to prison, "there to remain
at hard labor, or otherwise" was not exer-
cised in this instance, and it is not power
which can be delegated to another The
power to pronounce the entire sentence, or
to try the prisoner, may as well be delegated.
The authority Of the Marshal to hold this
prisoner as he is doing, is not under this
mittimus. Is it under the general law!
The Civil Code provides: ''When any per-
son shall be sentenced to pay a fine, and to
be imprisoned until such fine is paid, the
time Of his Imprisonment shall be deemed to
discharge his fine, at the rate Of twenty-five
cents day." [sec. 81 Every person
who shall be fined for q violation of any pro-
vision Of the revenue laws shall, in case he
fail to pay such fine, be imprisoned at hard
labor until such fine be paid or remitted, or
until be shall have earned sum equivalent
to such fine" [Sec. 6s5. 1t is enough to
say OF these statutes that this case comes
under neither Of them This is not a case of
violation of revenue laws. A sentence of
q