The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-03-15
DAVIS
TRIES IT
y AGAIN
Claims W. g. Smith
is Legally in
Quod.
ASSAlLS THE
CHIEF JUSTICE
eliminating Incident in a Series
Of Peculiar Acts-Gear and
humphreys Busy.
q GORGE DAVIS made another at

n FORGE DAVIS made another at
III tempt TO send Walter @. Smith
to prison yesterday and TO cite
High Sheriff Brown for contempt In
releasing him upon the order OF Chief
Justice Frear. Davis claimed, and he
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 writ was
issued The Circuit Court very gener-
ously agreed to take no further action
in the matter until Chief Justice Frear
was given an opportunity to remedy
the mistake that they held he had
made.
y Davis landed In the courtroom short
ly after 2 O'Clock yesterday afternoon.
and notwithstanding the fact that the
Mccarthy trial was In progress, and
witness was under examination. was
allowed to interrupt the proceedings to
tell his troubles
Il want a citation issued for the Hon.
A. NJ. Brown, High Sheriff. to show
cause why he shouldn't be punished
for contempt I'm not obeying the NIT
tinus OF this court In the case OF Wal
ter c. Smith," said Davis.
Deputy Attorney Douthitt objected to
any remarks upon that case before
the jury, as he didn't want a mistrial.
and Mr.. Davis was ordered by the
court to restrain himself until the jury
could be sent from the room
Il propose to show" continued Da-
WIS., that Walter @. Smith Is not In
custody upon the mittimus. as was d.
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-
leased without authority" continued
Davis
AT this stage of the proceedings
Gear sent 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.
II was appointed by the court, he
testified. ito appear as aInicus curia-
A few minutes ago / saw the High
Sheriff and asked him If Walter e.
Smith was in custody undsr the mitti-
mus and he said mo- 1 asked him
then If he had brought Mr. Smith be-
fore the Supreme Court, and he said
mo- but that he had released him upon
q writ OF habeaS corpus, a copy OF
which he delivered to me. And here II
is" concluded Davis, as he handed the
document to the court and left the
stand.
II contend that the body of Walter
C. 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 ap-
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 Valld.
This is not a matter that L care Tor
personally but the High Sheriff should
be compelled to obey the mittimus. 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 a recess OF nVe
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: 1T
appearing to the court that the mitti-
mu. heretofore issued by the court, In
the matter OF the contempt of Walter
c.. Smith, was placed in the hands or
the bailIff, and the respondent was
placed by him in the custody OF the
High Sheriff. 1t appears now that
Walter @. Smith Is not in custody. but
was released under the order OF Chief
Justice Frear. admitting him to bail
il the sum OF $500. 1t appearing fur
thsr to shis court the order issued was
beyond the power of the Chief Justice.
and II is not entitled to the respect OF
this court I think that IL 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. I think IL Is due to the
(-hseF Iuaffre IN call the to his
attention before action IS taken