The Hawaiian gazette., 1902-06-06

iia.i ssf tff.04aI lil0aI lif.a eiitl.
N0NHaiu eos itsi H Iit lstuf Ui n
IIflaN faF fNI tIH ffHsItH HHA Nt
fIH Hfs HflHNis ga mat aHf
ilNth M IHl NlHiHH HrIiHin mtffff
Ha UltainH iifa hH Wfah thai 81 eat
M ihI IHHH f|Hm .Hn NNutf nHf
iit ,liiH hHi Nihrft 90 ~ matf and
publish f0f flfTuiafIHH ThI iHuNuaf.
used Fafus iH mH a. D. incapable ui
such q rHntifu tInn
TOE nsst ana ias recital % ne nit.
iimut ih The tasf ai bar ~ a. follows
And whereas tff aHiH Wallet q
Smith Was guIiik NJ a contempt ~ this
court by pubhshinr and printing cst.
tain false. sUsndaious. malicious and
dtinmatUty statement accompanied hy
u printed picture nt cartoon. which faid
statement ana cartoon had especial
reference a. the case uf the Territory
~ Hawaii Ns william Mccarthy and
90 the conduct and Judicial acts 1T the
jude presiding On the trial of said
cause. which said false soandaious
ana printed picture or cartoon was clr-
culhtsd and published in the court
room. In the court house I'm Honolulu
duuug the trial ~ the cause uf the
Territory of Hawaii W.. William Nc
Carthy which said publication was
calculated to prejudice aud did prcju-
dice the minds Of the jury and prevent
fair and impartial trial of the ISSUES
involved In said case. and is calculated
TO obstruct aud did obstruct the Cir
cult Court I'm the administration OF
justice and in its duties in the trial Of
said cause which was then and is now
pending and undetermined" OF this IL
is To be observed that il is not a recital
Of a conviction or OF an adjudication
of guilt, but merely that Smith was
guilty. The mittimus. however is not
the judgment or verdict; it is merely a
formal order issued to the sheriff re-
citing that a certain judgment or ver-
dict has been heretofore rendered and
sentence passed and directing the ex-
ecution of such sentence. 1t is not suf-
ficient that the mittimus recite that
the accused was guilty but IL must
show on It's face that he has been ad-
judged guilty by a jury or by the court.
as the case may be. In other words.
even though an accused is guilty, a
conviction or Judgment TO that effect
by a competent tribunal is necessary
to support a sentence or the execution
thereof. Without such conviction or
judgment, the sentence and order of
execution would be invalid. But il is
clear that a general order to imprison
a party unless he has been convicted
either by a jury or by the court is a
mere nullity. The law requires that
before a sentence of imprisonment
shall be passed against a party, he
should first be convicted of an offense.
In ordinary cases, this conviction must
be by the verdict of a jury In the
case of contempts, ii may be by the
judgment of the court. Still, in either
case, the record must show a convic-
ton. Now IL will be seen from this re-
turn that there is no judgment of i'm
prisonment for a contempt generally,
or for a contempt in refusing to answer
questions. There is not any conviction
or adjudication by the court that Mr.
Adams had been guilty of a contempt
Without such judgment the court had
no right to commit him to prison, nor
the sheriff to detain him. II is true,
and was admitted on the argument,
that Mr.. Adams did refuse to answer
questions asked by the grand jury and
it may be true that the court consider
ed that a contempt for which he de-
served Imprisonment, but no such judy
ment has been rendered in the case:
and however many contempts the pris-
oner may have committed il is not
lawful to imprison him until convicted
thereof by the judgment of the court,
which judgment and conviction must
appear by the record" Exparte Adams,
80 that IT appears that there has been
no adjudication that petitioner and his
associates have been guilty of con-
tempt If this be true, then the com
mitment, occupying as IL does the
place of an execution, has no basis on
which to rest. For it is the judgment
and not the mittimus by virtue of
which the party committed is detained
People eX rel VS.. Baker, SO n. Y, 400
Unless the record GhnuG "a Of
conviction of contempt, petitioner
may avail himself of the remedy pro-
vided by habeas corpus" Elk parte
O'Brien, 127 Mo, Az, 4SS, 4S9. See also
Tx parte Van Sandau, / Phillips. 6O4
500. 6O7; People VS.. Bennett, Paige
2S2; In re Blair, 4 Wis. 52l; Sherwood
VS.. Sherwood, 80 Conn, 1.
Assuming, however, that the language
used can be held to be an aVerment of
a conviction or judgment OF guilty of
the offense there stated, such
offense so recited is, so far as the petit
TONER Is concerned, "A constructive and
not direct contempt. The recital is
that Walter G. Smith was guilty of a
contempt of this court by publishing
and printing" a certain statement and
cartoon, (which said state
ment and cartoon was circu-
lated and published in the court room
in the court house in Honolulu during
the trial ." This is not state
ment that the matter was circulated
and published in the court room or
caused to be so circulated and publish
ed by Smith II is not recital of a
conviction Of Smith for contempt by
publishing and printing and by "cir-
culating and publishing in the court
room.' In my opinion, as stated above,
the printing and publication generally
away from the court room may have
been by Smith and the circulation and
publication in the court room may
have been by others for whose acts
Smith would not be criminally respon-
sible.
1t may be remarked in this Connection
that it is not to be presumed that the
court or the clerk issuing the mittimus
intended or attempted to make therein
an untrue or incorrect recital as to
what the conviction or judgment was;
and if 1t had been intended or attempt
ed to state in the mittimus that the pc
titioner had been convicted or adjudg-
ed guilty of circulating and publishing
IN the court room, such statement