The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-07-30
'FERRE|RA
IN COURT.
Gear Says He May
Have Been in
Error.
SHOULD NOT HAVE
DISCHARGED HIM
Argument on Question of Arrest
After Discharge on Writ OF
Habeas Corpus.

After waiting Tor over month upon
the return of Judge Gear. the second
petition of Dominigis Ferreira for writ
of habeas corpus was finally argued
yesterday. Judge Gear took the matter
under advisement, though he intimated
several times during the argument
what his decision would be. AS these
limitations were directly opposite in
tone, it is hard to predict what the
| court will do with the prisoner. whom
ne has already released once on habeas
corpus.
The real argument on the matter was
brief, though the attorneys and court
managed to put in over two hours dis
GUESSING side issues. Mr.. Brooks opened
the argument for the petitioner. and
discharged on habeas corpus and con-
sequently could not be again impris-
oned without a new conviction. IN this
case, he said, there had been no con-
tention that there was a new indict
ment or conviction, and consequently
Ferreira is being held without any
right whatever. He argued that the
court in the present instance could
have remanded him to prison to await
the drawing up of proper papers. when
he was released on the first writ, but
this had not been done, and the author
tiles were uniform on the proposition
that release upon habeas corpus is
final.
Gear was a little skeptical as to what
he should or could have done, and init
mated that the man ought to have been
RENTED by him until the judgment
could have been executed. Davis in
terrupted to say that 1t was not the
fault of the court. but OF the attorney
general, who should have moved TO re-
commit
II suppose, then, the Court made the
! wrong ORDER" said Judge Gear. Il
should have ordered him recommitted. +"
Brooks added that it was possibly
right for the Court to have made the
order, but there was no motion for 1t.
Mr.. Douthitt argued that the statute
provided that no prisoner released on
habeas corpus could be rearrested un-
less there bad been a material default
in the eorpanitment. This there had
been, as hefd by the court in discharg-
ing the prisoner the first time, because
| of the lack sof certified record and judg-
ment in the jailor's hands.
Gear said that Douthitt had admit
ted he was right in granting the first
order of discharge, but Douth1tt cor
recteG to say that his admission was to
been proper pro forma, with leave to
the Territory to file the papers which
were sufficient to hold him. He con-
tended further that the courts own
ruling was evidence of a material de-
fault in the commitment, and the rear
rest was in compliance with the stat
ute Gear seemed to miSunderstand
the distinction the attorney general
wished to draw between a mittimuS
and a commitment, the Court argu-
ing that they We're one and the same.
Finally Judge Gear said that he was
probably wrong in holding that the
prisoner should have been released the
first time, but he had followed ruling
of the Supreme Court, though against
his conviction. Now he was placed in
a peculiar position, for he was still
bound to follow the Supreme Court.
though believing otherwise. Deputy
Attorney General Cathcart argued that
the Court was stretching the intent OF
the Supreme Court decision. which was
only to the effect that a mittimuS had
performed its functions after the pris-
oner had been lodged in Jail. Gear re-
piled that he did not agree with this,
and that in Hawaii where the high
sheriff was both sheriff and jailOr, the
mittInus was sufficient to hold a man
In custody.
Davis closed the argument. and the
case went over until Friday. when
Judge Gear will render a decision.