The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1900-10-09
THIS MAN LEAVES HIS CELL
CONSTITUTION AND FLAG MAKE
CONNECTIONS.
"Transition Period" Eliminated in His
Case, and Prison Doors Open on
Verdict Of Nine Jurors.

Two opposite opinions in regard to
the question of whether or not the Con
stitution follows the flag" in Hawaii
were filed by the Supreme Court this
morning. 1t is remarkable coincl-
dence and a peculiar anomaly. In the
minds of some the defendant in one of
the matters has good grounds for ap-
peal on the decision in the other case.
In the Marshall case the court says the
Constitution did not apply here, and
sends the defendant to Jail; in the Ed
wards case the court declares that Ha-
wail was under the Constitution and
takes the defendant out OF Jail.
It is q difference in the construction
of the situation by different men.
Frear, Galbraith and j. A. Magoon
heard the Marshall matter Frear Gal
braith and Humphreys sat on the other
case. The last two named are Con
stitution" men, while the other two are
not. In their syllabus Galbraith and
Humphreys say: 1.-THE Congress of the
United States by a Joint Resolution,
TO provide for anneXing the Hawaiian
Islands to the United States, approved
July 7th, A. D. 1898, provided, inter ALA,
that the municipal legislation of the
Hawaiian Islands not inconsistent with
this joint resolution nor contrary to the
Constitution of the United States shall
remain in force until the Congress of
the United States shall otherwise de-
termine.' On August II, 1898, there were
certain ceremonial functions held in
Honolulu at which the Hawaiian gov
ernment was formally notified by the
United States Minister Plenipotentiary
and Envoy Extraordinary of the adop-
tion and approval of the joint resOlu-
ton aforesaid and at which the Ha-
waiian government made an unequivo-
cal transfer and cession of it's authority
and property. Held
THAT by virtue of the language of
the Joint Resolution above quoted all
munipical legislation of the Hawaiian
Islands contrary to the Constitution of
the United States was eX vi verbae and
not by implication merely, annulled and
ceased to be of force or effect after the
18th day of August, A. d. 1898. The
question as to whether the Joint Reso-
luton took effect so as to operate as a
repeal of Hawaiian municipal legisla,
contrary to the Constitution of the
United States, at the date of it's APPROX
al or on the 18th day of August, A. D.
1893, is one not necessary to the deci-
sion of this case.
mo person could be put upon trial
for an infamous crime in the Hawaiian
Islands after August IL, 1898, without
having been first indicted by grand
jury; nor could one, be convicted of
such crime save by the unanimous ver-
dict of twelve Jurors.
Section GIG of the Penal Laws of
1897, provided for the finding of an in
dictment' by a Circuit Judge and that
part of Section 1345 of the Civil Laws
of 1897 authorizing nine jurors to re-
turn verdict in criminal cases Is mum
icipal legislation contrary to the Con-
stitution of the United States and is
null and void.
"Sodomy is an infamous crime with
in the meaning of the Fifth Amend
ment to the Constitution of the United
States
"The petitioner in this case having
been put to his Indictment so called
found by a Circuit Judge charging hin
with the crime of sodomy and thereof
convicted by a verdict less than unani'
nous, is entitled to be discharged"
Chief Justice Frear's dissenting opin'
ion is longer than the decision itself. II
it he holds to his well known "transi'
ton" ideas and makes the same points
used in the Marshall case.