The Honolulu republican. [volume] (Honolulu, T.H.) 1900-1902, 1901-06-13
ATTORNEY THURsT0H
ESCAPES PENALTY
Chief Justice Frear
Finds He Wasn't
Convicted.
DECISION UPON HlBEls CORPUS
AMERICAN AND ENGLISH CASES
ARE QUOTED TO SUPPORT
THE CONCLUSION.
DECISION UPON HlBEls CORPUS
There Being No Record of the Peti-
TONERS Conviction Before Sen
sence the Court Does not Consider
Questions Raised by Counsel.

Chief Justice Frear late yesterday
afternoon filed q decision in the
habeas corpus case of L. A. Thurston,
sentenced to pay a fine of 800 and be
committed TO prison until he consent
ed to answer the questions OF the
Grand Jury.
The petitioner is discharged.
The full text of the decision is here
presented:
In the Supreme Court of the Ter
ritory of Hawaii. In chambers Elk
parte Thurston Habeas corpus. Sub
mitted May 90, 1901. Decided June
u, 1901. Before Frear, CD.
The petitioner, having refused as
a witness TO answer certain questions
put to him by the grand jury in the
Circuit Court of the First Circuit, was
ordered by the Court to appear and
show cause why he should not be re-
quired TO answer such questions. He
made a showing which the court held
insufficient in law as to one OF the
questions asked, namely. as TO the
name of client of his. He contended
that he was privileged from answer
ing this on the ground that to do so
would be violation of his confidential
relation as attorney to his client. The
mittimus. which is set forth in the
return. after reciting the proceedings
at length. continued: And the said
L. A. Thurston being then and there
by the Court ordered and directed to
appear before the grand jury and fur
nish to it in response to its interro-
gatory the name of his alleged client.
and the said L. A. Thurston then and
there in open court declining to do so.
1T is ordered and adjudged that the
said L. A. Thurstop be and he Is here
by fined in the sum of one hundred
dollars:
And it is further ordered and ad-
judged that said L. A. Thurston be
and he is hereby committed to prison
until such time as he shall express his
willingness to appear before the said
grand jury and answer the interro-
gatory aforesaid, to wit: to disclose
the name of his alleged client. &c.
1t appears that the petitioner declin-
ed TO answer a certain question and
that thereupon the court sentenced
him to pay fine and suffer imprison-
ment. 1t nowhere appears that the pc
titioner was convicted of contempt.
A person cannot lawfully be sentenced
for the commission of an offense until
he has been duly convicted or found
guilty of the offense. 1t may be per-
fectly clear from the evidence in a
criminal case tried before a jury that
the defendant has committed certain
offense, but the court cannot sentence
him for it until the jury have rendered
verdict of guilty against him. 1t is
equally true that the court cannot in q
criminal case heard or tried by itself
pronounce sentence until it has found
the defendant guilty. A contempt
such as it is contended the petitioner
committed is criminal offense and no
sentence can be pronounced until after
conviction in such case any more
| than in other criminal cases. The
mittimus does not show that the petit
toner was convicted of any offense,
nor does it show of what offense he
! was convicted, il he was convicted OF
any offense.
In Elk parte Adams, % Miss. S92. the
court ordered that George II. Adams
| be sent to Jail. and remain there until
| he signifies his assent to the court to
answer questions to the grand jury,
or until final adjournment OF said
grand jury at this term Of court On
| habeas corpus before justice OF the
| high court OF errors and appeals, the
! following language, quoted in Church,
| Hab. Corp, Sec $50, was used: But
| it is clear that general order TO inn
prison a party unless he has been
convicted either by a jury or by the
/ court is a mere nullity. The law re
| quires that before 3 sentence of I'M
/ prisonment shall be passed against q
party. he should first be convicted OF
an offense- In ordinary cases. this
| conviction must be by the verdict of 8
| jury In the case of confempts. 1t may
be by the Judgment of the court
| Still. in either case, the record must
show a conviction. Now it viii be
seen from this return that there is nc
| judgment CT imprisonment for con
tempt generally. or for contempt T
refusing to answer questions There
| is not any conviction or adjudication
/ By the court that Mr.. Adams had been
| guilty OF contempt Without such
| Judgment the court had no right tc
commit him 10 prison. nor the sheriff.
to detain him. Il Is true and was
admitted On the argument. that Mr.
Adams did refuse 10 answer questions
asked By the grand jurv. and il may
be true that the court considered that
. contempt for which he deserved i'm
prisonment- but no such Judgment has
been rendered In the case. and how
ever many contempts the prisoner mas
have committed. II is not lawful Il
imprison him until convicted thereof
BIZ the Judgment Of the court. which
judgment and conviction must appear
by the record
See also Privesz " PRESLEY. 50 Ind
ss1: Ex parte o'Brien. 1T No AT.
People v Bennett. Paige IS: In r
i blair. 4 Wis. so. ShErxnof '. sher