The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1902-03-18
DAVIS TRIES
It AGAIN
Claims W. G.. Smith
is Legally in
Quod.
cFrom Saturdays dany)

= EOlttE llAN II Nluu' hN'thfI AT
NJ tempt 60 send walter g. Smith
60 prison yesterday and Co cite
high Sheriff Brown for contempt IN
releasing him upon the order Of thlet
Justice Frear. Davis claimed, and b"
was sustained by Gear and Hum
phreys. that the writ of habeas corpus
was invalid. in that Mr.. Smith had
not been brought into the presence OF
the Chief Justice before the wrt was
issued The Circuit Court very gener-
ously agreed 20 take no further action
In the matter until chief Justice Frear
was given an opportunity 60 remedy
the mistake that they held he had
made.
Davis landed In the courtroom short
ly after o'clock yesterday afternoon,
and Notwithstanding the fact that the
Mccarthy trial was In progress, and "A
witness was under examination, was
allowed TO interrupt the proceedings TO
tell his troubles.
Il want citation issued for the Hon.
A M. Brown. High Sheriff, TO show
cause why he shouldn't be punished
for contempt in not obeying the NIT
tmus OF this court In the case Of Wal
ter G. Smith," said Davis.
Deputy Attorney Douthitt objected to
any remarks upon that case before
the jury, as he didn't want a mistrial,
court to restrain himself until the jury
could be sent from the room.
Il propose to show" continued Da-
Wis, that Walter 6. Smith Is not In
custody upon the mittimus, as was di-
rected."
There is a receipt here from the
High Sheriff showing that he was In
custody" said Judge Gear.
"He Is not In custody, and was re-
y
Davis.
At this stage OF the proceedings
Gear gent for Humphreys, and the two
judges occupied the bench together.
Davis then asked TO go upon the stand
to prove his assertion, and he was
accordingly sworn.
IL was appointed by the court" he
testified "to appear as amicus curia.
A few minutes ago | saw the High
Sheriff and asked him II Walter G.
Smith was In custody under the mitti-
mus, and he said no | asked him
then II he had brought Mr.. Smith be-
fore the Supreme Court, and he said
mo- but that he had released him upon
writ of habeas corpus. a copy OF
which he delivered to me. And here 1t
is." concluded Davis, as he handed the
document to the court and left the
stand.
Il contend that the body of Walter
G.. Smith was not delivered before the
Supreme Court before the mittimus
was issued, and the only way the
High Sheriff could release him was to
have the body of Walter G.. Smith APP
pear before the Chief Justice with the
return before him. The mittimus is
sued by this court is in full force, the
writ of habeas corpus not being valid.
This is not a matter that | care for
personally, but the High Sheriff should
be compelled to obey the mlttimus. The
authorities are all one way, and the
writ is of no effect. The only way Is
to make the High Sheriff show cause"
At this stage of the proceedings
Judge Gear announced recess of five
inmates to consider the matter.
When they returned Robinson was
brought along, and the three judges
occupied the bench together when
Gear delivered his" opinion.
Judge Gear said in substance: III
appearing to the court that the mitti-
mus heretofore issued by the court. in
the matter of the contempt of Walter
G. Smith, was placed in the hands of
the bailiff and the respondent was
placed by him in the custody of the
High Sheriff. 1t appears now that
Walter G. Smith is not in custody. but
was released under the order of Chief
Justice Frear. admitting him to bail
tnS sum OF souV. II appearing ibl
ther to this court the order issued was
beyond the power of the Chief Justice,
and IL Is not entitled to the respect of
this court. / think that If the error is
called to the attention of the Chief
Justice, that the order will be revoked,
and the Sheriff ordered to take him
into custody. / think ii is due to the
Chief Justice to call the error TO his
attention before action is taken"
I "A
attention Of the Chief Justice" pro-
tested Davis, land he promised to look
into IL. / have no doubt but what he
will revoke the writ and supersede the
order admitting the respondent 10
bail"
Here Judge Humphreys leaned over
and whispered anxiously into Gears
ear.
Judge Humphreys calls my attention
to the fact that the order made by the
Chief Justice is null and void, and alb
surd on the face of ii, admitting the
defendant TO bail. ! have no doubt If
his attention is called to II, he Will re-
woke the order, and the return not be-
ing until the 2lst of April, undoubtedly
the defendant will serve his sentence
before the time is up. i think II due
to call the attention OF the Supreme
Court TO the error. 1t is perhaps only
mistake or inadvertence. Even the
Chief Justice is liable TO mistakes as
all courts are. He is not divine. The
defendant should not have been re-
leased upon that order, for the order il
OF no effect"
II will let the matter drop unit
morning, and see If the mittimus has
not been obeyed, and the defendant
placed in custody. II he is not, l shall
certainly ask that the High Sheriff b,
ordered to show cause" said Davis, II
conclusion.
The question of the validity of th'
order made by Chief Justice Frsar wa
presented to him during the afternoon
but no decision was reached. Mr.. Lew
Is and Mr.. Davis both appeared In tn
judges chambers, and Chief Justic
Frear promised TO pass upon the mat
ter this morning. Just before Judg
Gear left the bench last evening. Davi
burst into the courtroom and said
well, he promised to consider II an
pass upon II In the morning"
II can't see what there Is to consid
Nfa. .Iusw a.