The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-03-14

To his evening paper. In fact. 1t was
given out nearly an hour before the
service was made.
Mr.. Smith was taken TO the police
station, and in the meantime l.. a An
irews and Mr.. Lewis appeared before.
Chief Justice Frear with the following
application for writ OF habeas cor
pus:
IN THE SUPREME COURT OF THE
TERRITORY OF HAWAII. BE-
FORE HON. w. f. FREAR-
CHIEF JUSTICE, AT CHAM
BEERS.
Writ of Habeas Corpus.
To the Honorable Walter +. Frear,
Chief Justice of the Supreme Court:
The petition of Walter q. Smith, an
American citizen residing in Honolulu.
Island OF Oahu. Territory of Hawaii,
respectfully represents:
Cd That your petitioner is imprison-
ed and restrained of his liberty in Ho-
rolulu. Oahu, by one A. NJ. Brown,
High Sheriff of the Territory of Ha-
vail
>. That the cause or pretence of such
imprisonment or restriction according
To the knowledge and belief of your
petitioner is that the said 4. NJ. Brown
claims to have and to be acting under
an order OF arrest and mittimus issued
by George d. Gear, judge of the First
Circuit Court OF the said Territory.
go That the said order or mittimus is
based upon the warrant or order by
said judge that your petitioner is in
contempt of court in publishing, print
ing and circulating a statement of and
concerning the said judge of the Cir
cult Court. and the cartoon or picture
with reference TO a cause now pending
and undetermined in the Circuit Court.
to wit, the case of the Territory of
Hawaii against William Mccarthy.
and which said statement and publ
cation and picture or cartoon is we'll
calculated to prejudice and will preju-
dice the minds OF the jury sworn to
try the issues, and hinder obstruct
and prevent the court and jury in the
discharge of their duties and the ad-
ministration of public justice, which
order is based upon an order to show
cause why petitioner should not be adj
judged guilty of contempt and petit
toners return thereto. and the pro-
ceedings had therein and before said
Circuit Court.
(D That your petitioner claims that
the said judge OF the said Circuit Court
had and has no right or jurisdiction to
issue said order or mittimus. and that
the same is illegal and void for the
reasons:
THAT the act complained of in the
motion is not in law a contempt of
TO punish this respondent.
II-That the court can not legally
punish as for contempt a publication
of the nature of that in said order
complained of made in a newspaper,
and not done in the immediate pres
ence of the court.
III-That the publication of cartoon
or picture, such that complained of.
done without knowledge by the per-
son so publishing the, same, that the
case pending before the court would or
might be prejudiced thereby; or with
out knowledge that any such case was
pending. is not contempt of court. and
cannot be punished as such.
IN-Under the statutes of the Terri
tory of Hawaii no publication out of
court in relation TO the court or to
any of its members amounts to con-
tempt, and the same cannot be pun
ished as such.
What the return and answer filed
herein, and the proceedings had there
under, fully show that the defendant
fully purged himself of any alleged
contempt, and that no such contempt
was committed.
VI-Xhat the said order or mittimus
is in Violation of the constitutional
rights guaranteeing and providing for
the freedom of the press.
NII-Tkat if said act complained of
was a contempt of court whatsoever.
the same was merely a constructive
contempt, and not punishable by the
Circuit Court.
NIII-That the record of proceedings
shows that said proceedings were ille-
gal and irregular.
IX-All of which said claims appear
more fully in the order to show cause,
the afidavits attached thereto, the pc
tiuoner's motion to discharge the rule
and answer and return made by this
petitioner and in the proceedings had
n ron Ind atr,i o1t
the said order and mittimus is based.
and the proceedings had in connection
Herewith to which said order to show
cause, motion, return and proceedings
ROW on file in the said Circuit Court
your petitioner asks leave TO refer for
greater certainty and make a part
hereof. and copy of which order to
show cause and affidavit in support
thereof. and of petitioners motion to
the rule and answer and
return is hereto attached and made
part hereof
(5) That your petitioner has been I'M
able to obtain a copy of said order,
or mittimus under which he
believes he is held. and asks leave
when he can obtain the same to attach
them hereto and make them a part
hereof
Wherefore, your petitioner prays that
a writ of habeas corpus forthwith issue
out of this court directed to the said
A NJ. Brown. requiring him TO produce
the body OF the said Walter CT. Smith
before this court al such day and hour,
as in said order may be set forth, and
that upon due investigation by this
honorable court of the matters and
things hereinbefore set forth and prop
arly appurtenant to the subject matter
IF this petition, said Walter CT. Smith
may be discharged and freed from
said restriction and Imprisonment, and
hat pending the hearing Of this petit
ion your petitioner may be admitted
% bail WALTER CT. SMITH
After reading the affidavit and ac-
papers carefully, the CHIEF
Justice granted the petition, and gave
he petitioners leave to add the mitti-
nus to the record. when they should be
,iyen a copy. The writ was made re-
urnable April 21st, and bond was fixed
t $500. The following is the order
made by 1uGp,e Fraar IIpOr1 which High