The Hawaiian gazette., 1902-06-27

ALL JUDGES
WILL SIT.
Gear Asks Aid in the
habtas Corps
Case.

Another attempt 90 rure The release
pomlugis Fcfrclra. now serving o
ave years sentence ln oahu prison.
was made before Judge Gear y,ster-
day The departure of Gear ana Davis
Tor iilo made the hearing yesterday an
impussibuty. and the matter was put
over until July 18TH. Fcrrcira Ia the
meantime having his liberty under
bond Of $4,000.
In the petition, filed yesterday Fer
roira claims that ne is held under the
old mittimus, and that his arrest was
without legal authority being made
without a new conviction, since Gears
last order of release. The question
raised now will not be heard by Gear
alone. according to the announcement
he made from the bench yesterday. He
stated that all three Judges would hear
the matter, as he had requested Judge
Robinson and Judge Humphreys To sit
with him.
There was "A long sparrfng match in
court over the question of return.
The order had only been received by
the Attorney General half-hour be
fore the hour FOR its return, and conse-
quently the necessary papers had not
been drawn up. The petition Is ad-
dressed To both High Sheriff Brown
and Jailor Henry, and both men APP
pcared I'm court with the prisoner.
Deputy Attorney General Cathcart APP
peared for the Territory, and asked for
continuance until such time as h.
could prepare the return. Davis was
willing enough to grant this but Gear
was not, stating that though the Su-
preme Court had established the Irece-
dent, he did not think it legal to release
u man on habeas corpus, upon giving
bail, until the return had been made.
cathcart replied that he had not had
sufficient time to prepare the return,
aud as the court intended to leave for
Hilo at noon, the matter would go over
anyway until his return, as Gear stat
ed that he would hear the matter, and
would not let il go before another
judge. Cathcart then said that the re-
turn was under preparation by Mr..
Douthitt, and would be filed during the
day He consented to the release of
the prisoner on giving $4,000 bail. Davis
joining in the request for the continu
dnce, as he also desired to leave for
Hilo at noon. The continuance was
finally granted and Ferrera ordered
released upon the filing of the return
and bond of $4,000 during the day.
Ferreira claims his arrest is in viO-
lation of Section 424 Of the Civil Code.
which declares against rearresting
prisoner who has been released under
Rabeas corpus, unless he is indicted
again or unless after "a discharge for
default of proof, or for some material
default in the complaint in criminal
case, ne shall be again arrested on suf-
fioicnt proof, and committed by legal
proof, for the same offense."
The application is based also upon
the ground that the order of Judge
Gear was violated in rearrestng Fer
reira after his former release. 1t is set
out that there has been no new trial
on conviction and the petitioner is con-
sequently held without legal right or
Iue process of law.
The return Of the high sheriff and
Jailor Henry was made yesterday,
showing that FerTeira is now held by
virtue of certified copy of the judg-
meEt held by them. After reciting the
facts in regard 20 the former convic-
ton and release on habeas corpus, the
return says:
THAT thereafter. on said 18th day of
June. 1902. the said Domingis Ferreira
was rearrested by the high sheriff of
said Territory, under and by virtue of
the Judgment, sentence and decree of
this court. certified copies of which are
hereto attached and made part hereof
mat at the time of said rearreSt as
aforesaid. duly certified copies of the
judgment, sentence and decree of this
court had been furnished and supplied
by the proper officer OF this court to
said Arthur NJ. Brown. high sheriff
and to said William Henry, keeper of
Oahu prison. aforesaid, and that said
Arthur NJ. Brown and said William
Henry hold and detain said Domingis
Ferreira under and by virtue of the
same and under and by virtue of the
judgment, sentence and decree OF this
court "
Ferreira's bail bond was signed by
his brother and by Fred Harrison.