The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-08-27
concluding Judge Galbraith holds:

,,,o,,ision of section SO of the organic =
,nt authorizing Grand juries to be ;,
,raWn in the manner provided Dy Ha- h
raiian statutes for drawing petty Jul,
.ies', cannot be and has not been en- 4
forced, for the reason that when the \
carts of the Hawaiian statutes proYid-
mo petty iuries annulled by the or i
aanic act were stricken out, not enough :
remained to provide a method TOT :
drawing a jury of any kind, ana tnat :
since June a. 1906, grand ana petty
iuries have been drawn under the :
common law powers of the circuit
courts. and in the manner provided by
the common law The prison is being
filled with convicts indicted and con-
victed by the juries drawn IN tins man
ner and no question as TO It's ieSdiltE
has been raised. The circuit courts
during the time these petitioners were
convicted had the same powers in TINS
respect that the circuit courts nave
exercised since June IA, 1900.
The appeals should be dismissed and
the decision of the circuit judge a1ilrm-
cd c. A. GALBRAITH.
QUALIFICATION OF PERRY.
I'm overruling the Circuit Court in the
cases of Osaki Mankichi, Goto Hayzo'
Ihara Ichigoro and Yamane Nenchiro, |
Juae.e Frear wrote the decision which
dealt specifically with the right OF
Justice Perry to sit. The decision IN
chief is based upon the ruling in the
All OF case The court holds that these
proceedings were entirely separate and
distinct from the original hearing. and
were in fact new proceedings.
I In the reasoning as to the qualifiea-
ton of Judge Perry the court holds;
N.Y., ,oro,,;c;or cf section S4 now in
voked applies to only ID an appeal or
(2l a new trial in (3) the same case IN
which the Judge has given previous
Judgment The appeal before thls
court in each habeas corpus case is
one remove farther from the crlinlnat
case in which Judge Perry sat tnan
the original habeas corpus case beIofs
Circuit Judge Frear was. Consequently
if Mr.. Justice Perry could not sit on
this appeal he could not sit in an orlgl-
nal habeas corpus case brought TO op-
tain the release of "a prisoner sentenc-
ed by him-which would be absurd. II
he could not do that it would be De
cause such a habeas corpus case Wouid
be the same case as, and elther an
: appeal or new trial in the criminal
case. which is absurd. Who ever
+ heard it advanced that judge could
not sit in habeaS corpus case brought
to secure the release of a prisoner
though sentenced by himself? This was
done during the present month by the
: very circuit judge from whose decl-
sions these appeals are taken. In the
case of In re Pahia, now before u.s. ana
about to be decided, it appears that
> Judge Gear sat in habeas corpus
1 case brought to obtain the release or a
> person, not merely over whose case ne
; had presided, but whom he hlmsell
e had convicted as well as sentenced.
i of
{ 1t was "a different case and neither an
appeal nor new trial
u The maxim that no man shall be a
u Judge in his own cause, of course, mas
IL no application to this case. The ques-
. ton is not whether Judge Perry was
: right or Judge Gear wrong but wneth-
er the petitioners were unlaWfully helo
= Judge Perry is not a party In these
9 cases They are not Ibis own causes
o They are the causes of the petitioners
: 1t has been most common occurrence
q in both England and the United States
i fh. judges to sit on appeals not only
: in cases in which questions were IN
d volyed which have previously beer
pa ssed on by themselves in other cases
: hut also in the very cases in Whlcf
e they have previously actually sat aht
L. rendered judgments 1t is the statute
V not the maxim, that now prevents
-. Judge from sitting on an appeal Oh
II he has given a previous judgment pu'
II the statute does not go so lar as tt
/, preyent him from sitting on an appea
If or new trial in a different case thousi
i he may have previously sat IN case
?. involving the same questions at law
If the statute did go so far, the dls
le sentine member of this court WouiC
a himself be disqualified in these cases
lie for he has given a previous judgment
II in a case the only questions raised II
1t which were the very questions involved
); in these cases.
le The appeals are sustained, the order:
n appealed reversed, and the prisoner:
n remanded to custody
is George a. Davis and F. NJ. Brook!
d for the petitioners.
J. Attorney General f. P. Dole for th'
y respondents.
20 DISSENTING OPINION OF GAL
- BRAITH, JUDGE.
~ respectfully dissent. My reason:
~ for so sdoing are given in the dissent
,s ine oninion filed in the case OF All Oh
- argued and submitted with the above
cases.
1t NOW IS Up TO JUDGE ESTEE.
i Scarcely had the ink dried on th'
s. signatures TO the Supreme Court decl
or sions before Attorneys Brooks ane
sc Davis were planning another way L
ie secure the release of the prisoners. Al
- has been already announced an appii
a cation to the Federal Court was th'
N next step in contemplation. YESTERDAY
m afternoon an application for writ
st habeas corpus was presented to Juds'
le E,stee in the case of Osaki Manklchi
y who is serving a twenty years sen
40 tence for manslaughter. Judge Este
Id signed the writ and it is made return
s, able TO him this morning. 1t IS asked
t, for on the same grounds as or1glnail.
ne set out before Judge Gear, namely, tina
x the prisoner was illegally restrained o
- % his liberty. having been convicted oy
rt iury of nine contrary to the Constltu
of ton. etc. and reciting the very sam
j. reasons as first given.
he As the question presented is Con
a stitIItional one, the Federal court ma
H. jurisdiction. and the entire case viii b.
III opened for his consideration. and n
win be called upon to give an opinion
4 ,pir he