The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-02-26
BACK TO
JAIL.
Attorney Biting
Must Serve His
Sentence.
JUDGE ESTEE so
DECIDES THE CASE
Thinks Lawyer Was not Punished
too Severely---Other Notes
Of the Courts.
AwYER BITING must spend his
ten days sentence in Oahu prison

4
for contempt Of the First Cir
cult Judges court. Judge Estee or the
United States District Court yesterday
decided that the Circuit Judge had not
punished the lawyer too severely In
sending him to Jail, and remanded him
again to the custody Of the jailer. Mr..
Biting states that he will carry his
case 20 the Territorial Supreme Court
on habeas corpus proceedings and
have ruling from that body upon the
questions raised by him In the United
States Court.
Judge Estee rendered a lengthy de-
ciSion, covering ali the points involved
IN careful manner. The history OF
the case is recIted fully, beginning
with the causes leading up TO The Cir
cult, Judge making the order or I'M.
prisonment of Mr.. Biting. He dwells
upon the point that the petitioner did
not resent the treatment he received
at the prison, but objected to being
where he was"
"The High Sheriff testified further"
says Judge Estee, that the petitioner
was given three meals a day, sleeps in
the euardroom on cot with mattress.
pillow, blankets, sheets and mosquito
net. and is allowed the freedom Of the
upper pOEtlOH VI the w dIQcUS quar-
ters.' The single contested fact being,
Is the petitioners imprisonment in
that prison cruel and unusual?'
1T is doubtless true that the eighth
amendment to the Constitution of the
United States is intended to protect
the citizens against excessive bail, ex-
cesSive fines and cruel punishment;
and unusual punishment referred to in
the Constitution must mean such pun
ishment as is unusual because Of Its
cruelty, or unusual because of the
length of the term of such imprison-
ment. 1t should be borne In mind that
the conditions in the Territory of Ha-
wall are different from those prevail
ing in the States. 1t is not yet nine
months since Congress passed the Act
for the government Of this Territory.
and there has hardly been time to pro-
ances. and for this reason alone it
would be most extraordinary for Q
United States Court in this distant
land to seek technical reasons to inn
pede the administration of public JUS
tice by hurrying to find constitutions
al cause for making general Jail de-
livery of all convicted misdemeanors,
or to look for technical grounds for
overruling the judgments Of the Terri
torial courts In a hearing on habeas
corpus. Indeed, it must be made clear
ly apparent to the court that the lib
erty of the citizen is imperiled before
1t will so act. And again, there are
three Justices of the Territorial Su-
preme Court now in Honolulu, to none
of whom has an application been made
for relief The petitioner, therefore,
is not without his remedy if this court
is in error. 1t was held by the SUI
preme Court of the United States III
Makuson vs.. Boucher, 175 U. S. 1874,
that We have frequently pronounced
against the review by habeas corpus
of the judgments of State courts in
criminal courts because some right
under the Constitution Of the United
States was alleged to have been denied
the person convicted That is what
the court is asked to do in the pro-
ceedings at bar"
Judge Estee admits the Circuit
Courts right to fix the punishment,
but denies that the petitioner had the
right to request him to regulate the
character of his punishment, or, in
other words, seek a different Imprison-
ment from that which other parties
found guilty of misdemeanor are made
to suffer. In the Marshall case, de-
cided October %. 1900, Judge Estee
held that, except in peculiarly urgent
cases, no United States Circuit Court
or District Court will discharge a
prisoner on habeas corpus after con-
viction in Territorial court He
said 1t is the duty of the court to see
eAshS is are properly en-
forceu, and that he possesses no power
to control the judgments of that court
unless it is clearly shown that the con-
stitutional rights of the citizen are be-
ing violated. He does not take the
view that Biting was being subjected
to cruel and unusual punishment
In amy event." he continues .'the
Judgment Of the Territorial Circuit
Court Is presumed to be right and
what Is stated in the mittimus must
be taken as true. He performs no la
Dor on the Streets or elsewhere He
suffers no ignominy not common TO all
the prisoners. The court is compelled
to believe that petitioners punishment
IS neither cruel nor unusual, and.
therefore, not in conflict with Article
8 OF the Amendments to the Constitu-
ton OF the United States Let petit
TONER be remanded"
COURT NOTES.
T. B. Murray is being sued by ]. A.
Magoon to recover the principal and
interest alleged to be due on a pronl1s-
sorry note given by the defendant on
December 4, 1899, payable six months
thereafter. The amount of the princ1
raj is S439.O7, of which s25.75 only mas
ben paid, as is alleged by the plain
Et.f. The latter claims $413.32 principal
Z -