Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1902-04-23
VALENTINES
ATTORNEY DAVIS ON
ADVERTISER CARTOONS
Contempt Law Of 1883 Could Not
Apply to a Court Not Then in
ExiStenCe---Three Judges
Regular.

/ lOf TN eulSCnafSe OF Editor smith OF
the Advertiser until 2:t5 yesterday af- !
ternoon. His contentious included
four points namely: that the contempt
was constructive II anything, therefore
not punishable under the Hawaiian
statute; that the publication referred
to closed case. therefore not con-
tempt; that the petitioner had purged
himself of contempt. and that the pro-
ceedings against the petitioner had
been illegal, before an Illegally con-
stituted court, a self-constituted court,
there being no provision for the Cir
cult Judges sitting in banco.
Mr.. Andrews followed on the same
side, speaking for three-q quarters OF an
hour. He laid stress on the points he
had unsucCessfully endeavored to have
introduced into the petitioners ans
wer Citations were made from ten or
twelve books.
Mr.. Davis began his reply on behalf
OF the Circuit Court at o'clock. He
said in opening: This is not con.
struCtiye contempt It is a direct con
tempt They circulated this malicious
and vile cartoon in this courthouse
on trial"
While quoting from the books casea
he deemed precisely in point, Mr.. Davis
made running comments on the case
at bar Walter G. Smith, in his blind
malice against Judge Gear for the sins
Of another person, assaled him day
after day with vindictive language and
cartoons. Look at the cartoon, the
speaker adjured the bench. 1t repre-
sented Judge Gear blessing vile
specimen of humanity in the act OF
committing a dastardly crime. The
cartoon was calculated to shift the bal
ance OF the case on trial
Mr.. Smith had right to attack q
judge for wrong-doing, but not to do
so maliciously or SO as to prejudice
! justice. The Advertisers course was
described as making a sort of st.
| Valentines Day every morning" Such
vindictive caricaturing would not be
tolerated in San Francisco II this car
toon had appeared after the trial OF
Judge Gear would have noticed II. Nc
earthly, however vile he might be, was
wrapped around with the constitutional
theory of innocence. lie was entitled
to a fair and public trial. The consti.
tutional right of free speech must be
exercised with due respect to other
provisions of the constitution. The
| Ntng "a .l, ,g
ment and must he upheld.
According to Massachusetts case
1t was not the intent but the result OF
interference with the courts which
made contempt Thus ii was in this
case. That thing there Pointing to
the cartoon) caused mistrial and
compelled the calling of new jury.
Not what Mr.. Smith intended to do but
what he did was the point Yet no
amount of argument about his intent
could be supported Everybody in this
community knew what he intended
morning after morning.
The Circuit Court was constitution.
al court created by the Organic Act,
its judges were appointed by the Pres.
ldent of the United States. Counsel
might talk about its being an inferior
court, but II was q court existing by
the same authority as this honorable
Supreme Court. If members of the
press thought proper to attack GER
tain courts and judges, let them bG
careful that they did not attack the
rights of third parties.
Coming to the matter of the citation,
Mr.. Davis said he was going into that
question because he expected to make
some money out Of II hereafter. There
could be but one Circuit Court. The
Circuit Court consisted of three judges
When court sat in divisions II re-
quired statutory provisions that did
not exist here. II was Judge Gear who
found Mr.. Smith guilty ana sentenced
him. You cannot go behind that mitti-
mus. II was the right of the Chief
Justice to call In his colleagues for
consultation on a matter of habcas
corpus or any other matter in which
he had individual jurisdiction. Equally
did single Judge OF the First Circuit
whose court consisted Of three judges,
call his colleagues into consultation
Judge Gear was presiding at the Cir
cult term when this matter arose.
Answering question of Justice Per-
ry, the speaker said he didn't care
whether the other two judges were sit.
ting to advise the presiding Judge or
as coordinate members of the court.
In either case, 1t was the Circuit Court
In reply to remark by Mr.. Andrews
about the mittlmus Mr.. Davis said:
1T is signed by the clerk. That is a
valid mittimus."
Mr.. Davis complimented Mr.. Lewis
upon having made an able effort, but
sNid he had failed to apply his law IA
tile facts. "You cannot make the case
you can only argue on the facts"
The next point argued was that the
Circuit Court Of the First Circuit was