The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1900-08-20
startling LAW PNBAR RICH INHERITANCE SATE STILL FGN NINE MEN ACCUSE KAPPA
GILL LIBEL CASE THowN OUT OF
COURT.
A Broad Attack Upon the Jurisdiction
OF the District Court-No Libel Law
Left at All.

The Gill libel case this morning be-
fore Judge Wilcox was a battle of law
points, ending with the discharge of the
defendant, on the ground that the dis
trict court had no jurisdiction either to
try or commit, in such a case.
Among them, lawyers made out the
startling contention that there is abb
solutely no libel law left on the statu-
tes of the Territory of Hawaii, and Ma
goon and Hankey, who appeared for
the defense, asked Judge Wilcox to
practically declare that his court had
been swept out of existence by the tide
of Americanism that has engulfed the
old laws. There were suggestions of
ordinary drunks demanding Grand Jury
indictments and of journalists throwing
out libels without let or hindrance.
Judge Whiting and Judge Stanley,
A. G. M. Robertson, c. +. Peterson and
f. NJ. Hatch had been summoned for the
prosecution, which was represented by
attorneys Kinney, McClanahan and
Bigelow. When 1t became evident that
the lawyers were going to talk for a
long time and that the distinguished
members of the bar would not have
chance to tell what they knew about
the late banquet and the arranging of
toasts thereat, or about whether there
was any favoritism in Hawaiian courts
/ in the past the judge excused the wit
nesses till half past one, by which time
the case had been thrown out-of court
and they were not needed.
The case began with a motion for dis
missal on the ground that written
( charge, based upon the complaint al
ready entered, had not been sworn to.
| The court overruled this motion and
| then Hankey made an address of an
| hour and a half, on a plea that the
court had no jurisdiction. He had come
! into court with a formidable pile of
| law books under his arm, and he kept
the other side busy noting authorities.
! Hankey contended that libel was an
| infamous offense, the punishment being
! infamous, and that therefore the ;!e
! dendant could not be tried except upon
| indictment by a Grand Jury, also that
the defendant had a right to a jury in
the first instance, which the district
court could not give. The lawyer made
the statement that any offense for
which man was liable to imprison-
ment at hard labor was an infamous
offense and could not be tried without
an indictment.
Judge Wilcox wanted to know If that
| theory did not practically put the court
out of business, making it impossible
for him to try even a common drunk,
who may he imprisoned.
1T might have a considerable effect
1 that way" was the lawyers answer.
Hankey aroused a laugh at the pri-
soner's expense by his efforts to con-
vince the court that libel was subject to
| infamous punishment. He drew a pic
ture of the prison life to which the de-
fendant might be sent in case of con-
viction, telling of morning calls to
breakfast with a lOck-step procession,
of striped suits and labor on the streets
of bread and water diet solitary con-
finement, balls and chains official bar
I haV XI-bn oh nd ne
various other indignities that come to
those who stop with Jailor Henry. Af-
ter this description one of the opposing
counsel acknowledged an inclination to
regard libel as an infamous offense.
Kinney admitted that the court had
no original jurisdiction, but thought the
judge might commit the defendant for
trial before the Circuit Court. He de-
clared that if the district court was
pOwerless to commit or try there was
no way for a man guilty of libel to be
brought to justice in the Territory of
Hawaii. "There is serious doubt as tC
whether libel is an indictable offense,
said Kinney. IF it is not, the only way
for this kind of case to reach trial is
for this court to commit for trial and
let either the Grand Jury or the Circuit
Court take up the case.
IF when the matter reaches the cir.
cult court the judges there think it is
a matter for the Grand Jury that body
may take it up. If the circuit court
thinks proper to try the case, on the
other hand it may proceed to do So
! The lawyers were all very sure tha
! common drunks did not engage the at
tentiOn of Grand Juries in the States
in spite of the Supreme Court decisions
cited by Mr.. Hankey, which seemed t,
: show that a man who had had a jal
, had right to ask for indictment befor,
being tried. THE decisions cited seen
to show" said Kinney that petty of
tenders here can demand Grand Jury
Investigations, but we all know that th
q police courts in the states take origlna
Jurisdiction"
Attorneys Hankey and Magoon re
turned to the attack with contention
that the court had no more right t
commit than to try the defendant es
> pecially while the Grand Jury was il
session able to indict. Hankey state,
that his authorities had shown that n
such case as the one under discussion
could be tried without an indictment
and that the laws of the United State
gave the defendant a right to a jur.
. trial in the first instance. Hankey sal
that if the laws of the territory did no
provide a means of proceeding to TT,
= the defendant, so much the worse fo
: the laws.
at may be-" said Magoon "tha
! NHtlt 10 no law ltll uHutI which llDt
can be punished at all. If that is s
it is an unfortunate state Of affairs, bu
II is not the concern of the courts. Th
courts will have to wait till the legis
lature provides a law"
Judge Wilcox sustained the plea o
the defense and discharged the defen
! dant. He cited the Barney case of las
week. In that case the defendant ap
peared in the district court on a charg
of murder, but made no plea, a post
ponement being had. Barney wa
taken before the Grand Jury by tn
attorney general and was duly indicte
,, as a result of which procedure he is {
e be tried for the first time in the circu
u court
l. Judge Wilcox did not make any dec
sion as to whether he would have cor
sented to hear the case If the Gran
a Jury had not been in session. This le;
yes undecided the contentious of the d.
PENDANTS as TO the right of a jury tTi
in the first instance.
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