The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-06-06

, petitioner crimInaliy liable for sue
, publication or circulation In the cour
room. CThere II. IL Is true. authorit,
10 the contrary To convict him upol
such facts would be To hold HIM liaOl
: for the acts Of others not aided. IN
: cited or encouraged by him. Such |
: case would not come within the rul
r as u responsibility for the natural ant
plainly probable consequences OF one
r acts.
Bearing In mind these definitions anC
distinctions. OF what onense does tn
rnittImus show the petitioner TO have
been adjudged guilty and for what OF
s Tense does 10 show that sentence wa,
imposed upon him?
After reciting In fun the motion fol
citation or affidavit the mittimus fur
thsr rccites that Smith was cited q
. answer Ito the said charge or contempt
which had been duly filed against him.
. and that upon due hearing OF the evil
dence and OF counsel lin support OF the
charge" and contra. the said Circuit
Court found the said Walter @. Smith
guilty OF a contempt OF this court as
charged In the affidavit and motion. .
The affidavit and motion. as appears
from the quotation above. made. charg-
ed a constructive contempt only; II
charged that the petitioner did make
and publish for circulation" the matter
referred To- and. perhaps. that he know
Ingly published an unfair report OF the
PROCEEDINGS anu MALICIOUS luNtCtlNtrs
etc II did not directly or indirectly,
charge a publication or circulation by
the petitioner or by any one else in
the court room or In the court house.
Thus far. then. the mittimus shows a
conviction OF a constructive contempt
only.
The cuddy case O3I u. s., 2s0) Is dis
tinguishabie from that at bar. In the
former the finding OF the lower court
was that the petitioner did approach"
a certain Juror with n view to influence
ing him The record IN the habeas
corpus proceedings was entirely silent
as TO the place where the Juror was
approached The words used in the
finding were consistent with the theory
that the act was committed in the
presence OF the court as well as with
the theory that IL was not committed
In the presence OF the court. The Su-
preme Court held that under those cir
cumstances the presumption was that
the court found the juror was ap-
preached In the presence OF the court
and that therefore the sentence was
valid. In the case at bar. on the other
hand. the record shows affirmatively.
as IL seems to me. that the acts charg-
ed were committed elsewhere than In
the court rooom or court house. The
language OF the affidavit adopted and
made a part OF the judgment and nit
timus. Is To be read in its ordinary ac-
SO II iIArallSs IL IL
means anything. that the making and
publishing was away from the court
house. When one says that the '.Ad-
vertiser" Is "a newspaper printed. pub
lished and OF general circulation within
Honolulu" and that In its issue OF
certain day the said newspaper and its
editor and servants. did make and
publish FOR circulation" certain matter.
he certainly does not mean that IL was
In the court room or court house that
the editor and others did so make and
publish for circulation. The language
used seems To me to be incapable OF
such a construction.
The next and last recital Of the nit
timus In the case at bar Is aS follows:
And whereas the said Walter G..
Smith was guilty OF a contempt OF this
court by publishing and printing a GER
tain false. scandalous. malicious and
statement accompanied by
n printed picture or cartoon. which said
statement and cartoon had especial
reference To the case OF the Territory
u Hawaii ~. William Mccarthy and
To- the conduct and judicial acts OF the |
Judge presiding on the trial OF said
cause. which said false. scandalous. |
and defamatory statement |
and printed picture or cartoon was cir |
rulated and published In the court |
room. in the court house in Honolulu |
during the trial OF the cause OF the |
Territory of Hawaii NJ. William Nc /
earthly. which said publication was
calculated to prejudice and did preJu-
lice the minds OF the jury and prevent
1 fair and impartial trial OF the issues /
involved In said case. and Is calculated /
In obstruct and did obstruct the Cir
.uit Court In the administration OF /
Justice and In its duties In the trial OF |
'aid cause which WAS then and IL now
and undetermined" OF this IL
r To- BE- observed that IL - not a recital /
q n gsif.fNnFn nj 81 n N naturalization
n guilt. but merely that Smith was
guilty. The mittimus. however. Is not |
he Judgment or verdict: II Is merely a
formal order issued To- the sheriff re-
'itinE that a certain judgment or YER
iict has been Heretofore rendered and II
sentence passed and directing the ex-
.cntion OF such sentence. IL IS not suf-
icient that the mittimus recite that II
he accused was guilty but II must II
'how on is face that he has been ad- ii
Judged guilty by jury or by the court.
~ the case may be. In other words. II
wen though an accused Il guilty. a II
or judgment TO that effect II
~ a competent tribunal Is necessary III
% support n sentence or the execution
hereof without such conviction or
Judgment. the sentence and order OF
execution would be- invalid. But IL Is
lear that a general order to imprison
party unless h. has been convicted |
'ither by jury or by the court Is n
mere nuliity. The law requires that
'efore n sentence OF imprisonment
hall be- passed against n party. he
hCuld first be convicted OF an offense.
n ordinary cases. this conviction must
- by the verdict OF n jury. In the ,
asc OF contempts. IL may be by the
Judgment OF the court. sim. in either
ase. the record must show a convic-
ion. Now II will be seen from this re-
urn that there Is no judgment OF i'm
risonment for a contempt generally. |
r for a contempt in refusing to answer
uestions. There - not any conviction
z adjudication by the court that Mr..
adams had been guilty OF n contempt. 4
Without such judgment the court had |
q right To- commit him 20 prison. nor
he sheriff TO detain him. II is true.
nd was admitted on the argument =
nat AIR Adams did refuse TO answer
ucStions asked by the grand jury. and
may De true that the court consider
{ that a contempt for which he de-
.rVcd imprisonment. but no such judg-
lent has been rendered In the case:
nd however many cOntempts the pris-
n-r may have committed. IL Is not
Iwful to imprison him until convicted