The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1900-10-24
MlRslIIl WILL AIE
TO RETURN TO PRISON
That the Decision of
Judge Estee Yes
terday.
PETITIONERS ONLY REDRESS
Is THROUGH WRIT OF
ERROR.
Laws of Republic Held to be in
Force Until rganic Act
Took Effect in June
Last.
EFT the petitioner be remanded. :

1
Judge Estee's decision in the Mai
shall case in the United State
court yesterday. This means tha
Marshall must return to the Oahu PEN
Tertiary to serve out his sentence of 81
months at hard labor for the crime q
libel. for which he was convicted on IL
18th of May last, on q verdict returned b
nine jurors.
Judge Estee holds that he has no juris
diction in the case and that the petition
er's only redress is by securing a writ o
error from the United States Suprem
Court. an act that it will be impossible
for him TO d.
Only few were present when tn
court opened aside from the attorney
who took part in the argument few day
ago. William II. Marshall and his coun
sci, ]. t. DeBolt. Attorney General f
2. Dole. L. S. Attorney J. G. Baird, Geo
d. Gear W. .. Smith and General Hart
well were in the court room at 10 o'clock
Judge Estee came in promptly on tim,
and after a few words with Clerk W. C.
Waling about matters on the docket, tool
| up several pages of typewriter manu-
| script and held the fate of William III
Marshall in his hand
Judge Estee had contracted q severe
cold and spoke with difficulty; He said
In the argument by counsel great
| deal was said about the consequences OF
| this decision If it is decided one way
certain of the counse, pointed out that the
| consequences wontd be 80 and so; If de
| cided another way, others spoke of the far
reaching consequences in that direction.
Such arguments" continued the judge,
must have been made in the excitement
of the moment The court does not make
| Law. but finds out what the law is
After reviewing the history of the case,
with which the reading public is thor
| oughly familiar. ard reciting the petition
for the writ of habeas corpus, the court
said:
IL was admitted on the argument by all
the counsel engaged therein both for pc
titioner and respondent. that libel In the
first degree, the offense charged against
the petitioner. was a misdemeanor, under
the penal statutes of the Territory of Ha-
wai. and that petitioner was not charged
or convicted of IAN infamous crime"
The petitioner bases his claim for his
discharge under the writ of habeas corpus
applied for. upon the ground that be was
tried convicted and sentenced without a
presentInent or indictment by a grand
jury that lie was found guilty by YER
dict of nine out of jury OF twelve; that
the offense charged against him was IAN
infamous crime" and that the whole pro-
ceedings of the territorial courts was IN
violation of and contrary TO the rights
secured TO him by the Fifth and Sixth
Amendments 10 the Constitution of the
United States.
The question presented is: Can this
court, except in very rare and extreme
cases. review on habeas corpus the verdict
and Judgment of the highest territorial
court of Hawaii. in criminal case
wherein constitutional question is
claimed "a be involved, and overrule the
action of that court!
From the date of the passage of the
judiciary Act of 1857 until now. the
Supreme Court of the United States.
while always holding that United States
district or circuit court had the power
in extreme cases TO summarily discharge
a party frsns custody rho il restrained Of
his liberty In violation Of the Constitution