The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-09-13
.CONV|CT
WAS VOID
Constitution Was
in Force, Says
Estee.
GEAR IS ASKED
FOR NEW WRITS
Men Will Be Arrested as Fast as
Released ed-AppeaIs Will
Be Taken.
JUDGE EsrEE yesterday morniny

granted the writ of habeas corpus
in the case Of Osaki Mankicho,
holding that he had Jurisdiction, that
the constitution of the United States
was in complete effect in the Hawai-
IAN Islands upon the passage of the
Newlands resolution, and that presents
ments by other than grand jury. and
conviction by less than a jury of twelve
men, were municipal laws contrary to
the constitution and therefore null and
void, during the transition period. His
ruling was directly contrary to that Of
the Supreme Court Of Hawaii, and
! Deputy Attorney General Cathcart has
already given notice of his Intention
to appeal from it.
| Osakf was rearrested on a new charge
yesterday, after his attorneys had spent
nearly the entire morning in trying to
evade the officers of the law. New
writs for the remainder of the prisoners
will be Immediately applied for before
Judge Gear who will no doubt follow
/ the ruling OF Judge Estee and order
the release of the choice assortment
of criminals now in prison. The men
will be Immediately rearrested, how
ever, upon new charges, and must OF
necessity then be taken before a grand
jury and re-indicted.
The Federal court room was crowded
yesterday morning when Judge Estee
delivered his opinion. Both Little and
Gear adjourned court for the occasion.
and with their respective juries were
present. Both the circuit judges were
given seats on the bench with Estee,
as was Judge Duston of Dayton, Ohio,
who was present. Gears face was
wreathed in smiles from one ear to the
other, as Judge Estee slowly proceeded
with the reading of the decision, and
as he referred to some particular part
/ in which, Gear was upheld, the latter
exchanged broader grins with Davis,
and fingered his moustache to hide his
pleasure.
! II didn't have time to write q short
opinion, as the statutes provide that
it must be given five days after the
briefs are fled remarked Judge Estes
as he began to- read his decision.
/ 1t is given in full as follows:
| OPlNlON OF TdE COURT.
This is an application for a writ Of
habeas corpus arising upo,i the petition
of one Osaki Mankichi. a Japanese.
The evidence, oral and documentary.
shows that on the 18th day of May, 1S9ob
a presentment was filed against the peti-
toner by the then C.r;,I.t Judge of the
First Circuit of the Territory of Hawaii
and without the, Intervention uf e grand
jury charging MIN 1i.S shc crime of
murder; that afterwards in the May
, term of that Court, OF thu game year, he
was tried on the sail presentment and
F convicted of the crime of ilansllughteD
d II the 1irst degree. The verdict was re-
turned by nine gu. of the twelve .urora
On the 22nd day OF Nay, i@D. ne was bx
the said Court sentenced 10 twenty
years imprisonniens al hard labor.
Petitioner now seeks his d scharge
upon the ground that he is being ille-
gaIly imprisoned because of the fact
that he was not indicted by a grand
jury, convicted by the unanimous
verdict of a jury of twelve men, as 10
required by the Constitution of the
United States. 1t being claimed that the
Constitution of the United States was In
force In these Islands during the period
covered by the trial, conviction and sem
tence of petitioner. and that Articles v,
VI and VII Of the Amendments to the
.NoiiStikotiuH were NiOldleC-
/ % The first point made by the As
sistant Attorney General for the Terri
tory is that this Court has no jurisdic-
/ ton to act and determine upon the Ques-
tions involved In this matter, because
writ of error should be sued out of the
Supreme Court of the United States By
the petitioner herein; that whatever maH
have been the action of the Territorial
Courts, the United States Court ought
not to interfere. that this case is not
one of sufficient gravitE TO call for the
interposit.on Of this Court on habeas
corpus
This IS Federal question raised In
Territory of the United States governed
by Federal law. under the Constitutions
and statutes of the United States. The
authorities referred to by the Deputy
iAttorney General, sustaining his position
against this Courts assuming turisdic-
ton in this proceeding, are not in point.
s Not one of the decisions cited relate to
this class of cases. This Territory is un-
der the control of Congress, and is not
an independent State, with a Constitu-
ton and local statutes governing the