The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1900-10-09
THIS MAN GOES TOPR|SON
CONSTITUTION AND FLAG FAIL
TO CONNECT.
He Got Caught in the "Transition Fe-
riod" Notion and the Verdict in His
Case Stands.

William H. Marshall, editor of the
Volcano, must serve six months in
Oahu prison for criminally libelling the
late Chief Justice Judd.
A decision to this effect was this
morning handed down by the Supreme
court, although Justice Galbraith dis
sents from the opinion The points
made by the court are there:
Section 304 to 3O6 of the Penal Laws
are not void for Effectiveness or un-
constitutional because they divide the
offense of making, as also that of pub
fishing libel, into two degrees without
distinguishing between them except by
the amount of the penalty and leave II
to the court or jury authorized to de-
eide on the facts to determine the de-
gree.
"Verdicts by majority of the twelve
jurors were lawfully received after the
annexation of these islands to the
United States but before the establish
ment of a Territorial government by
act of Congress.
when the record shows plea of not
guilty in the district court it is not
necessary that the defendant should
plead again on his appeal in the Cir
cult court or that he should plead to a
charge as amended in matter of form
where he has pleaded to the original
charge
1t will be observed that the first and
third paragraphs refer solely to Ha
waiian law and practice, and that the
second paragraphs touches the most
salient point in the appeal-that OF
whether or no Constitution follows the
flag" Chief Justice Frear and j. A.
Magoon in place of Justice Perry say
that in the period between annexation
and the establishment of the Terrific
rial government the Constitution did
not apply to Hawaii and that Hawaiian
regulations in regard to juries alone
applied in this country. On the point
the court says:
"The verdict was returned May 49,
1900, during the transition period be-
tween the annexation of these islands
to the United States and the taking
effect of the act of Congress establish
ing a Territorial government for these
islands. We hold that verdicts by nine
or more out of twelve jurors, as per-
mitted by Hawaiian law before such
annexation could be lawfully returned
after annexation and before the esta-
blishment of such Territorial govern
ment, basing our conclusion upon the
reasoning in Peacock & Company VS..
Republic, IL Haw, 81; Republic VS.. Ed
wards, h. 55; and the dissenting opi-
nion is eXparte Edwards, filed at the
| same time herewith
Justice Galbraith knocks square at
this point and stops there. He believes
that the constitution came with the
flag and not with the enabling act OF
the matter he says, in his dissenting
opinion:
1.-THE opinion of the majority of the
court reiterates the novel doctrine of a
Transition period" referring to the
! period of time between the signing of
the Joint Resolution annexing the Ha-
| waiian Islands to the United States,
July 7th 1898, and the taking effect of
the Organic Act, June A. 1900, during
which time, 1t is claimed, the islands
We're neither an independent soye-
reignty nor part of the United States,
and were somewhat in the condition re-
ferred to by Milton in the following
! lines:
' so here the Archangel paused
! 'Betwixt the world destroyed and
world restored
Then, with transition sweet,
| a New speech resumes"
He maintains the position to support
which, it seems, the phrase was coined
to wit, that during this period the Con-
stitution of the United States had nc
force or effect in the Hawaiian islands
From this doctrine and position 1 must
respectfully dissent" etc.
Marshall was before the district ma
gistrate about year ago on the charge
of criminal libel, was found guilty and
given six months. His appeal to the
Circuit court was not reached until
May last when the verdict of the jury
sutained the district magistrate.
Mr.. Marshall was taken into custod,
by High Sheriff Brown early this after
noon on a mittimus issued by the Su
preme court, and will be sent % Oahl
prison. He is considering an appea
and may take such. 1t was not sup
posed that he could appeal to the Uni
ted States district court, but the OPT
Mon this afternoon is that he can, {
loop-hole having been discovered. L
this is not possible an appeal woulc
have to go to the United States Cir.
cult court in California.
ENTERTAINMENT FOR GUESTS.