The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1901-08-16
PERRY IS DISQUALIFIED
CANNOT HEAR HABEAs CORPUS
APPEALS.
Another Prisoner ordered Released by
Judge Gear-Chances of Two Opinions
And No Decision.

The habeas corpus muddle was fur
ther complicated today, by a new point
raised as to the qualification of Justice
Perry to sit, and by the addition of an
other Japanese Kahuku rioter to the
dist of applicants for freedom under
Judge Gears ruling. Attorney Brooks
and Davis filed their brief in reply to
that of Attorney General Dole, before
the Supreme Court, in the cases heard
last Monday. The statement that Frear
had announced that decision would be
gi en- next Tuesday and intimated that
it would be overruling Gear is denied
AS a matter of fact the Supreme JUS
tices did not get the brief of the at
torneys for the prisoners until today.
The alleged disqualification of Perry
is based upon section 81 of the Organic
Act, which says: mo judge shall sit on
an appeal, or new trial, in any case in
which he may have given previous
= judgement" Judge Perry was the Cir
cult Judge who tried and sentenced the
Kahuku rioters, also indicating some of
them. The matter was brought to the
attention of the court today, being pre-
sented to the Chief Justice as follows:
"To the Honorable, The Supreme
Court of the Territory of Hawaii: Upon
examination of the Records in the with
in cases we find that Associate Justice,
the Honorable Antonio Perry presided
at the trial of the following cases-Here
follows a list of the cases in which
Perry was the Circuit Judge-in the cir
cult court and sat in judgement upon
the said cases. We therefore respect
fully submit that under and by virtue
of section "a of the Act to provide a
Government for the Territory of Ha-
wall the said Associate Justice is dis
qualified from sitting as judge and
bearing and deciding the appeal of the
Territory in all of the within causes,
they having been argued and submitted
together as one case on appeal to this
Honorable Supreme Court.
The disqualification of Judge Perry
will leave the Supreme Court in danger
of a tie decision, on the question of ap-
plication of American laws Frear
has already given a decision in previous
cases and so has Galbraith the latter
being in accord with Gear and the other
opposed to him. Should there be two
opinions and no decision Gears order
would stand. and the prisners would go
free.
The promised discharge of the Grand
jury further complicates matters. The
attorneys for the men who were re-
arrested are casting about for means
of getting them tried. Judge. Wilcox
refused to hear the cases. and he may
be DISQUALIFIED anyhow, having given
the men preliminary hearings the last
time. Application may be made to
District judge Dickey to hear the cases
as a committing magistrate, and COM
nit the men, to be held for the next
Grand Jury. If some sort of hearing is
not given, other applications for wrtts
Of habeas cornus may be made before
Gear, in behalf of the men he has al
ready released. on the ground that they
are being held in prison without bail
and denied the right OF speedy hear
ing.
Chida Mama bOro was the new apnli-
cant for a writ this morning. After
some discussion with the Attorney Cen
e~al. in which JudPe Gear again en-
phaticaIlv stated hts pOsition. Chida
was ordered released, only to be arrest
ed q cot" 00 a new warrant charging the
old offense.
When Attorney Brooks presented his
application for q writ Dole asked that
the matter be postponed, as the legal
cucet'o~ '"volved was before the Su-
preme court.
"I un1erstand that there is a doubt
about whether the question Is before
the Supreme Court" said Gear, 'and
that what is before the court, is the
question of whether the matter will be
considered"
Judge Gear then proceeded to give
apain the grounds Of hts decision that
the trials without Grand jury indict-
ments and without unanimous VerdictS
of iuries were Illegal and void. He or
dared Chida discharged.
Chida left the court room with buop-
ant step. enjoying the first freedom he
had known for over two years. and re-
lieved, as he thought, of 20-years'
sentence. He was allowed to leave the
buildine hut Detective David Kaapa
was waiting in front of the building,
. and Chida was rearrested as he was
heading down town.
Ch'1a loft the court room with buov-
murder trials. He was advised to do
so in the hope of getting a light sem
tence for his part in the killing of sew
eraI Cinnamon, hut judge Perry gave
him 20 years. His arnlica tion for re-
lease now. in snite OF the Llea of guilty
is made on the ground that he was
never indicted by Grand Jury.