The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-05-09

Attorney A. Lewis yesterday filed in
the Supreme Court his brief for the pc
titioner in the matter of the Walter c.
Smith habeas corpus writ. 1t is an
unusually long one, comprising 20 pages
and piles up scores of legal authorities
in favor Of the several contentious of
counsel for the petitioner. Lewis says
at the start that the two main pro-
positions are the power of the legisla-
ture to prescribe the methods of proce-
dure for the judiciary in contempt mat
ters, as well as other matters of juus-
diction, and the right OF the press to
comment freely upon past proceedings
in courts of justice.
The judgment of the lower court is in
valid and void, it is contended on four
grounds: First that the contempt, if
contempt at ALL was constructive and
the court had no power TO punish 1t
summarily; second that the criticism of
an action or proceeding heard and de-
teTmined is not contempt; third, that
the petitioner purged himself of con-
tempt, and four that the judges before
whom the adjudication of contempt was
determined were not the same body or
court or department of court before
whom the alleged contempt was COM
mitted. The following are extracts
from the brief:
THE power to summarily punish for
contempt is at best an arbitrary one.
The court condemned is at once the
party causing the charge to be made,
the party before whom the defendant is
tried, and the tribunal which passes
judgment upon it's own action. Such a
proceeding is in cOntravention to the
principles of our government
1T cannot be said that the court or
parties interested are without remedy
in a case such as the one at bar if they
consider that their rights have been in
fringed upon or violated, for they have
complete redress in a suit for criminal
libel, and such suit is most fair for all
parties. There they meet on equal
grounds, and if the judges dignity has
been outraged or the litigant's rights
have been affected, each may meet in
the Forum of justice and have their
claims passed on by a common arbiter
a jury of the country
LAS the Act of 1888 was still in force
| by virtue of sections POI and 262 of the
| Penal Laws of 1887 the Circuit Courts of
! the Territory of Hawaii are without
! jurisdiction to punish summarily tor
constructive COntemptS, and the judges
of the same and the litigants before the
court must rely for their remedy by
! suit in criminal libel. Unless the words
, of the English language have lost their
| meaning, we are unable TO find a more
| explicit re-enaCtment, ratification and
| affirmance of the law of 1883 than that
as set forth in the provisions of the
| Organic act.
| while counsel may cite a few cases
! which may seem to establish a contrary
doctrine. we maintain that a cohserva-
! tive statement may be made that our
contention as to the right of legislative
control in matters of contemI is es-
a Itch hNr hn frrIt Of 81 ft,-
| throughout the United States.
The history of the law of cOnstruc-
! tive contempt in this Territory demon
| strates without question what was the
| intention of the legislature in passing
the Act of 1888. In the case of Smith
VS.. Ahlo Haw. 115 decided in 1887 an
editor was punished for constructive
! contempt In 1889 the legislature pass
| ed the act limiting the cases in which
| the courts might punish for contempt.
! The case Of Smith VS.. AhlO, was fresh
! in the minds of the Legislature and was
undoubtedly the cause of the passage
! of the Act. 1t would, therefore seem to
| be the Will of the legislature that con-
| structiVe cOntempts should not be pun
| ished as such by the courts having be-
! fore it the result of the case of Smith
VS.. AhlO
Passing from the discussion of the
| constitutional point raised in this case
there remains a separate and distinct
doctrine under which the case at bar
falls, and under which the action COM
planned of has been demonstrated and
held to be not a contempt of court. 1t
is the right which is guaranteed by the
constitution that the press may COM
ment freely upon all matters whether
| political, commercial, or judicial. IN
| der this doctrine the courts have uni
Versally held that the press has unlim-
| tied right to comment upon past ac-
! lions of the court without being pun
| tshed for contempt of court. If in their
publications they transgress the law,
| they are answerable to the party in
| jured or maligned in a case of criminal
libel before the court. If the courts
! possess the power to punish for COM
ments upon past actions, the whole doc
! trine of free thought and free press
would be abrogated.
I'm the case at bar the comment or
| publication which was punished by the
| court below as and for an alleged con-
| tempt was comment or publication OF
| a past and concluded action.
GAS appears in the motion for citation
in the court below one William Nc
! Carthy on the 4th day of March 1902,
was tried in said court upon a charge
! of mayhem, and by the jury FOUND
/ guilty of the crime of mayhem On
! the next day the court set aside the
! judgment after motion presented and
| argued by counsel for the accused. On
| the 18th day of March the Pacific Com
! mercial Advertiser, a newspaper of
! which the petitioner is the editor is al
| legged to have published a cOntemptuous
and disrespectful cartoon or picture in
| tending to and deemed To represent a
! former action in ludicrous and dis
graceful manner Of him the Honorable
| George ID. Gear in his official and judi
cial capacity" The cartoon would seem
to picture a man biting the ear of a wo-
man, which is the essential ingredient
Of the crime of mayhem. After the
case of the Territory of Hawaii VS. Will
| liam Mccarthy, charged with mayhem,
was dismissed another action was
brought against the said William Nc
Carthy on a charge of assault in the
| first degree. However, the said pub
LEGATION or comment was not made with