The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-06-06
CONTEMPT WAS
STATUTORY
SUPREME JUSTICES LAY DOWN
THE LAW IN THE SMITH
CASE.
PERRY ARGUES IT WAS CON
STBUCTIVE CONTEMPT.
Frear and Galbraith Concur in Re-
handing the Perrys Rea-
sons for Dissenting.

In the three opinions filed by the JUS
tees of the Supreme Court yesterday in
the Walter G.. Smith contempt case, the
Hawaiian law as to cOntempts is dis
Cussed al much length. Justice Perry's
dissenting opinion, holding that the pc
titiOner should be discharged is several
pages longer than both the others. Chief
Justice Frear, in writing the opinion of
the court and Justice Galbraith, in
concurring. base their decisions largely
on the Hawaiian statute which sets
forth number of things which shall be
regarded as contempt, without speci-
flying whether they are direct or con-
structiVe contempt, which was one Of
the main subjects of argument in the
Smith case.
In his opinion Justice Galbraith says
that some of the acts named in section
257 would be constructive contempt and
some direct contempt and the act does
not classify them. He declares that the
Supreme Court cannot make such a
classification when the Legislature did
not do so. The section in question,
among other contempts sets forth
publishing animadversiOns on the evil
dence or proceedings in a pending trial
tending to prejudice the public respect
ing the same and to obstruCt and pre-
vent the administration of Justice" and
of the proceedings of a court, or mali
cious invectives against a court or jury,
tending to bring such court on jury, or
the administration of justice into ridi-
Guile, contempt, discredit or odium."
Justice Ialbraith says: 1T is not pro-
fitable to discuss the mittimus or its
contents, since there is a judgment in
the record before the court. The petit
toner was charged in the motion and
a VIII Of in, ba
language of the statute (Sec 25O and
the judgment runs: 1t is therefore the
judgment of this court that you be and
you are hereby adjudged guilty of con-
tempt of court as set forth in the afTida-
Wit This language fits exactly the
words of the statute. On re Bush, s
Haw 223)
I'VE have a statute which, so far as
| we have learned is peculiar to this
country, and which describes and en-
umerates certain acts and circum-
stances as contempt and makes them
punishable upon indictment and trial by
a jury and also summarily, These acts
are not classified in the statute as di-
rect and constructive contempts. Some
of these acts would fall under one head
and some under another, as generally
classified. BY our penal law, however
they are all cOntempts and punishable
either summarily or upon Indictment,
| or in both ways
1T seems to me that the decision in
the Bush case is controlling in this.
! concur in the judgment of the Chief
Justice, remanding the petitioner"
Chief Justice Frear, in writing the
opinion of the court, refuses to take up
| the questions of error in the proceed
ings, holding that the case is one in
| which the court can only consider
| questions of jurisdiction. AS to the re-
| sponsibihty for the circulation of the
! papers containing the McSwilligan car
toon, in the court room, and the ques-
| ton of Circuit judges sitting en- banc,
he says:
1T is not clear whether the petition
er had anything to do with the publica-
ton or circulation in or near the court
room or not. This is very material
unless the petitioner should be regard
ed as responsible in law for the pub
LEGATION and circulation there as a nat
ural and probable consequence of the
publication and circulation of a paper
or such general circulation in the city
where the trial was pending. Whether
! he should be thus held responsible is
a nice question, the affirmative being
| held by every respectable authority.
and no argument or authority having
been presented on behalf of the petit
toner in support of the negative.
/ THE fact that all three Judges of the
! Circuit Court sat at the hearing of the
! contempt case does not make the pro-
ceedings void. Whether they might
! properly all sit as a court, it is I'M
necessary to say. For, although dur
| ing the earlier stages of the hearing
they seem to have regarded themselves
| together as constituting the court, yet
the part that the Judges other than
| the presiding Judge took was unim-
! poTtant and was Joined in by the pre-
| siding Judge, and before the end of the
| case the view was apparently taken
| that the two former were there in an
advisory capacity only, and the presid-
! ing Judge alone finally pronounced
! judgment in form as if he alone con-
! stituted the court
Justice Perry finds that the prisoner
ought to be discharged, whether the
contempt be direct or constructive
! He discusses the difference between
| the two classes Of contempt at length,
as well as the citation for contempt in
| the case under consideration, the nit
| timus and the judgment Of the Circuit
! Court. If it was constructive con-
| tempt, Perry says, the prisoner ought
| tC be discharged, because the Circuit
! Court has no power to punish for con-
structive contempt under the act of
! 1883, prohibiting such punishment In
! this Perry's opinion declares for re-
! yersing the decision of the Hawaiian
/ Supreme Court, constituting this act. in
| 70 Bush, a contempt case in the Sth
| Hawaiian reports,
If it was direct contempt, on the 9TH
| eT hand Justice Perry says the petit
toner should be discharged, because
| the records of the Circuit Court do not
show that he was ever adjudged gull
! ty of such an Offense