The Hawaiian gazette., 1902-02-28
TRANSITION
CASE AGAIN
Appeal Will 60 to
San Francisco
Court.

first TO San Francisco. before ~ t.n.h q
the United states supreme Court az
washington. This. however is not
cNpectcd to affect iu any way the stat
as " the appeal now before thH Unit
ed states supreme Court The hearing
Of which has already been set down
definitely FOR next April The
provisions OF the organic act relative
To appeals from the United states
court here. SO far as they refer to the
constitutional law, have not been ju-
dicially construed. land IL Is I'm order
to avoid any possibility Of error the
habeas corpus case Of Osah Mankicho
viii be first taken TO the Circuit Court
of Appeals at san Francisco TO be
certified to the supreme Court. Coun-
sci on both sides are said To have
agreed 60 this, in order that any pos
sible question OF procedure or method
of appeal may be eliminated, and the
decision OF the United States Supreme
Court obtained upon the constitutional
questions involved as soon as possible.
Attorneys Il. NJ Brooks and George
Davis have prepared their brief in re-
ply to the argument of Attorney Cen
eral Dole in the United States supreme
Court and copies were forwarded to
Washington by the Alameda yester-
day. Mr.. Brooks will probably leave
within "A month to present the appeal
in person TO the Supreme Court, and
the Attorney General will also leave
about the middle of March.
The brief filed by Messrs. Davis and
Brooks contains, besides the argument,
an appendix relating the proceedings
of the Hawaiian courts in the Man
kicho case.
In their argument attorneys for petit
toner say: THE first assignment of
error, l. g.. that the court erred IN
granting "A writ of habeas corpus It is
submitted and contended that the
United States District Court rightfully
assumed jurisdiction I'm this case be-
cause IL clearly appears that the Cir
cult Court had no jurisdiction to try,
convict and sentence this prisoner
upon an Indictment which was not
found by a grand jury duly and regu-
larly summoned in accordance with ar
ticle V OF the constitution OF the Unit
ed States"
The further argue that Judge Estee
did not err in assuming jurisdiction
Of the case, because IL clearly appears
by the petition filed in that couIt, that
the Circuit Court had no jurisdiction
to try this prisoner for the crime of
murder"
Referring to the question of grand
juries. the brief says:
"If Ii was not intended that the con-
stitutional provision with reference to
the indictment by grand juries should
not apply until the organic act was
signed, or until it was specified in the
organic act why is the organic act
silent on this pointR
"The Bible and the altar are, and
were, as much adhered to and respect
ed at the time of the passage of the
Nowlands resolution In Hawaii as in
the State of California; the methods Of
taxation in this country Were the
same; the affairs of the government
it was claimed by those i'm pow er. was
carried on on the same lines as the
state governments in the United
States; our system of Jurisprudence
copied that Of the Union; Anglo-SaXon
principles prevailed; We We're American
in theory and in practice. and every
ambassador plenipotentiary and dele
gate sent from Hawaii urged upon
Congress and the Serate of the United
States that this was n civilized coun-
try, with system of laws with courts
with religion, with intelligence. with
wealth, and that the time was ripe
for annexation, and so Congress ac-
cepted us and accepted and relied upon
the statements that the Hawaiian Min
listers and commissioners made at
Washington as true, and the constitu-
ton came here with the flag, and 1t
was well known that the constitution
would be in force when the cession of
these Islands was completed; and the
indictment of the defendant by grand
jury was, and Is, a constitutional right
which the statute of an extinct oligar-
chy cannot override or take away"
1t is further contended that the
Newlands resolution itself extended the
constitution to Hawaii, and that an
indictment by a circuit judge is null
and void. The verdict of nine jurors
it is argued is in direct violation of the
constitution. and a violation of the
common law of England.
In conclusion the petitioners say:
There were extraordinary reasons
for the interference of the United
States District Court to grant this
writ of habeas corpus. Circuit Judge
Gear has issued a writ of habeas cor
pus and discharged the prisoner upon
the ground that his trial, conviction
and sentence We're absolutely null and
void, and the Territory of Hawaii, in
the absence of n statutory provision
allowing the Territory to appeal from
a decision and order discharging a
prisoner upon writ of habeas corpus
appealed to the Supreme Court of the
Territory, and the Supreme Court OF
the Territory held that the conviction
and sentence OF this defendant was
legal and valid. The case was fully
presented to the Hawaiian Suprem.
Court and the Honorable Antonio Per.
ry, who found the bill OF indictment
against this defendant who presided
at his trial, and sentenced the prisoner
sat on the appeal in the Suprem,
Court. Notwithstanding the protests
filed by the prisoners counsel that h,
was disqualified by the provisions o
the Act to Provide a Government 70
the Territory Of Hawaii. The proyi
sion OF that act is as follows:
No judge shall sit on an appeal, o
new trial, in any case in which h
may have given a previous Judgment
Circuit Judge Perry is now the sec
ond associate justice of the Suprem
Court OF the Territory. and was at tn
time OF the hearing of this appeal, 5
that this honorable Supre ne Cour
may be fully conversant with the fact
or this case. a respectfully append I
this brief copy of the brief filed 1
the Supreme Court on the hearin
OF this case on appeal, an
respectfully submit that tn
ast