The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-08-31

peal bond.
Can the Territory appeal in criminal
cases2' continued the court.
Il am not satisfied as to that point, -
returned Mr.. Cathcart; but our SUI
preme Court says that habeas corpus is
a civil action. The Supreme Court has
laid down the law that an appeal does
lie in an order discharging or remand
ing the applicant for writ of habeas
corpus, and it necessarily follows that
ed. The only question is whether a
prisoner once discharged can be held
under the old mittimus'
what about section 1914 as to the
order OF discharge in habeas corpus?'
inquired Mr.. Brooks
THAT refers only 70 the final dis
charge after the Supreme Court has
passed upon the case finally" respond
d Mr. Cathcart
Il am surprised the Supreme Court
didn't go further" remarked the court.
while they were legislating upon the
question they might as well have ruled
on the method of procedure in appeals
from habeas corpus, SO that the lower
court wouldn't be in the dark.
The petitioners here objected to fur
Their procedure, on the ground that it
was not shown there had been an ap-
peal. as no records had been filed The
records of the appeals were then intro
duced in evidence.
M !frook- argued that the main
question was whether or not the simple
notice of appeal. where there is no ex-
press statute giving the right to appeal.
can operate to held the prisoners when
they had been ordered released by the
Circuit Court. He stated that the APP
peal was from the order of the court
and not from the effect of the order.
He did not believe the decision of the
Supreme Court had any effect on the
order Of the lower court. nor did it act
as supersedeas.
THE Supreme Court simply held that
an appeal lies; 1t didn't go into the
question of a stay of execution" said
the court
The Supreme Court did not say so in
so many words" replied Mr.. Cathcart.
but practically held that Judgment
was arrested.
THE Attorney General never claimed
lildL- SdAu JuuSt
But it can be claimed now"
Mr.. Brooks: IF the order OF this
court was not final when he discharged
the prisoners then they are being held
subject to the order of this court
Mr.. Andrews also argued for the re-
lease of the prisoners claiming that the
order of the court had already been car
ried out, and the prisoners released, and
now they could not be held under the
old mittimus upon which they had once
been released. He argued further that
the order of the court had not been re-
verSed, that the question involved had
not even been considered by the Su-
preme Court and these men could not
be deprived of their liberty for six
months without any cause wha tsoever
Mr.. Cathcart admitted that there
might be hardship in Individual cases
but this was not sufficient to release
these men, and if they were set free a
bail bond should be given.
The court then rendered his decision
ordering the discharge of the prisoners
He said: The court can consider the
rights of the defendants only as given
them under the law. and it is shown
that they are held in an illegal way. I
can see why these men should be held
in the interests of the community, but
they are entitled to every benefit that
the law gives them. ] cant say that
because it is better that they should
be held that | will hold them
The Supreme Court of the United
States has held that where a man is
Illegally imprisoned he must be releas-
ed upon writ of habeas corpus. I be-
lieve that where a man is discharged
and again arrested on a new warrant
and nolle prosequi entered he cannot
be held now under the old mittimus
upon which he was set at liberty This
court doesn't believe that the Supreme
Court can stay the order of this court
in releasing prisoners. They have
strained the law until ii almost broke
but they didn't go so far as that
am not going to reverse the Supreme
Court but they have not held that a
notice Of appeal operates to keep mer
in Jail until the Supreme Court car
meet again. I viii not hold these mer
unless / am firmly convinced, and this
court viii not Construe the words o1
the statute as meaning that This
court viii hold that unless the Supreme
Court has legislated in the matter these
men cannot be held pending an appeal
The order of the court will be to allow
/ the writ to issue and the defendant:
! shall be discharged. 1t should not have
been necessary to make this order a:
! they have already been ordered re
! leased. The court holds that the frs
order has not been reversed by APP
peal
Both men We're Immediately re-arrest
I'D upon their release. and the new peti
ton for a writ of habeas corpus on thu
! grounds above stated was at once pre-