The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-09-11

(Gabraith j. disseningl
These appeals from orders discargin the petitioners in
habeas corpus proceedings.
The prisoners had been indicted tried convicted and sem
fenced the May Term 1899 Circuit Court of the First
Circuit They convicted and sentenced as follows Man
kc manslaugher in the first degree jurors impson
ment for twenty years. Hayzo rape jurors imprisonment
for e lchgoro murder in the first degree jurors DEATH
committed, believe imprisonment for fe Nenchiro,
manslaugher in the third degree Jurors imprisonment
five years
These similar that of In All o. just decided
and controlled by the decision that except
question which Will now be considered.
As remarked in that case counsel for the petitioners have
since the hearing called attention the fact that Mr. JUS
tce Perry, member of this court the Circuit Judge
who found the indictments presided at the trials and pro
nounced the sentences in the criminal under the sentences
in which the petitioners held and suggested that he Is
disqualified from sitting these appeals in the habeas
of the provision Section 81 of the Organic
Act that, No judge shall sit appeal trial. any
case IN which he may have given previous Judgment This
provision with others the Organic Act taken from
the Constitution of the Republic of Hawaii
Of course these hearings trials in the criminal
which the petitioners convicted equally
that they not appeals in those They appeals
habeas corpus cases. which heard by different Circuit
Judge The habeas corpus when before the Circuit Judge
trials appeals the criminal That Judge
could not grant trials in those particular
in this Court the habeas corpus cases. appeals those criminal
Not only these different but they different
kind They civil enforce the civil right of per
sona liberty The others criminal inquire into
alleged criminal As the Supreme Court of the United
States said, per Mr. Chief Justice Waite Er parte Tom
Tong los o. 556 he writ of habeas corpus is the remedy
which the law gives for the enforcement of the civil right of
personal liberty. Resort it sometimes becomes necessary
because of what done enforce laws for the punishment
crimes but the judicial proceeding under enquire
into the criminal act which complained of but into the right
to liberty Notwithstanding the Proceedings enforce civil
rights civil proceedings and proceedings the punish
ment of crimes criminal proceedings In the present
the petitioner IS held under criminal process The prosecution
against him criminal prosecution but the writ of habeas
corpus which he has obtained proceeding in that posecu
ton On the contrary it suit brought by him
force civil right, which he claims against those who
holding him in cuody under the criminal process If he fails
establish his right his liberty he may be detained for
trial for the oence but if he succeeds he be discharged
from custody The proceeding Instituted by himself for
his liberty, by government punish him for his crime
This petitioner claims that the Constitution and treaty of the
United States give him the right his liberty, Notwithstanding
the charge that has been made against him. and he has obtained
judicial process enforce that right Such proceedings bis
part is opinion civil proceeding notwithstanding
criminal prosecution See also Kts Moft lis e.. S. 49,
494; Fansvortb Montana 129 T. S. 104 113; Cross
Buks 146 o. S. 49, So Henderson James, 50 Oh ST. 242
So different indeed the classes of cases that habeas
corpus lies to lberate whose imprisonment unlawful
the of Indictment by grand jury when no appeal
writ of error lies criminal Er pdrte Wilson, ia
q. S. AT, 421. #sa
The provision of Section 81 invoked applies only ~
appeal ~ trial il CD the same which the
judge has given previous judgment Tie appeal before this
in each hab6es corpus farther from
the criminal in which Judge Perry sat than
quenty if 1r Justice Perry eoad not sit this appeal he