The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-06-19
HAS
A HARD TIME
JUDGE GEAR ALSO WORKS HARD
GIVING A HABEAs CORPUS
DECISION.
DEFENDANT FINALLY RELEASED
AND RE-ARRESTED.
The Contention as To More Than
One Judge sitting At Time is
Overruled.

Brooks and Assistant Attorney General
Douthitt enjoyed a record habeas cor
pus session of court yesterday after
noon, over the Domingo Ferreira case.
The case was set for decision at 1870
and the court met at that hour, but 1t
was a quarter past three before the
wrangle was over. Judge Gear at first
discharged the prisoner and then SUD
denly changed his ruling on account of
a defect in the petition, but finally the
original ruling prevailed, and the
prisoner was ordered discharged only to
walk into the hands of an officer who
was waiting for him.
The original grounds on which the pc
tition was asked were entirely lost sight
of in the confusion of arguments.
Judge Gear began by saying that the
return of the attorney general was
contradictory. He wanted Douthitt to
say whether the prisoner was held I'M
der the mittmus or the judgment. If
under the mittimus a discharge would
have to be granted under the Supreme
court decision in the Oriman case. In
that case the higher court held that
prisoners are not held under mittimuss-
es at all. but under judgments.
Il don't think it is a right decision
said the judge but it is the law ac-
cording to the Supreme court and l
have to follow that court. / have al
ways followed that court except in one
case where it gave down two contrary
decisions on one proposition in the same
day, and then l held that l had right
to decide for myself. Does the attorney
general contend that have not to fol-
low the Oriman deCsiOn?'
Douthitt admitted that that decision
ought to-be followed. He also admitted
that under it the prisoner could not be
held by the jailer under mittimus,
and admitted too that the jailer had
nothing else under which to hold him.
1t appeared that Ferreira was sure of
release But Gear consulted some notes
and remembered something, and he
threw a bombshell into the habeas cor
pus camp.
Wait" said the Judge, as several
people interested were leaving the court
under the impression that the case was
ended. 1.-THE prisoner is not discharged
The petition for a writ of habeas corpus
does not say anything about the mat
ter of a mittimus, but only alleges the
ground that the case was tried when
more than one judge was holding court
in the first circuit. / have no right to
go outside of the petition, and will not
discharge the petitioner on that
ground"
This reused Davis to rapid action,
and he finally succeeded in swinging
the court to the other view again. AS
a matter of fact you have a warrant for
the prisoner to re-arrest him, have you
note" asked Brooks, when the judge
suggested using the mittimus again,
and making out proper papers to hold
the prisoner.
Douthitt said that he had such
warrant, and Davis then wanted an Of
ficer who sat in the rear of the court
taken up for contempt. They can't do
this sort of thing" he said, bringing
officers and warrants into court to go
after a man under habeas corpus. It's
contempt. I remember case in Iowa
Scotia
There's no officer in court" said the
Judge. Douthitt remarked that he had
not stated that the officer with the war
rant was in court.
TN have that police man in Jail be-
fore night" said Davis, and he began
some rapid penmanship on what look
ed like a summons for contempt. I'm
der the excitement of answering Dout-
HIT and the judge on his pet subject of
habeas corpus, however he gave it up
for the time being.
The judge finally held that he must
take cognizance of the return as well
as the petition, and that it had been
shown that the prisoner was illegally
| held by the taller. I'VE are in this po-
| SlIlOn because OF the OIlHldn ueClSlOll'
which 1 believe was hastily written, "
said the judge. THE serious affect 1t
might have upon commitments to jail
was probably not appreciated when 1t
was written"
! Douthitt next suggested that the
court remand the prisoner until proper
papers could be made out. IF it be
shown that the proper papers are not
! in the possession of the jailer to hold
l Iafa he
might take cognizance of valid judg-
ment and sentence, and order the pro-
| per papers made, instead of ordering
that the prisoner go scot free. There is
a certified verdict and sentence Of the
court in the return"
Gear said that he had no authority
to do anything but discharge or re-
mand the prisoner AS to the conten-
ton regarding more than one court
having been in session when the case
was heard, in the first circuit, he over
ruled the petition. But on the other
ground Ferreira was discharged
] Davis left the courtroom with his prl-
/ soner looking for the policeman If the
| officer had tried to make the arrest, II
I appeared, ii would only be done over
| the body of the lawyer. The officer
| wisely kept at the bottom of the stair
way, outside the building, waiting till
teffelfa SnOulu COiile ouN anu 10 10
/ and his client retired to wait till they
got ready to come forth. Ferrelra was
| finally taken into custody again.
| The decision given by Gear in this
case applies to every prisoner in the ISL
/ ands. They are all entitled to their IL
| berty, under this ruling, by habeas cor
| pus proceedings. because the jailers
| have not certified copies of the judg-
ments against them. The attorney
generals department, however, may go
ahead and make out such documents
and thus fOrestall the habeas corpus
mill, or may appeal from Gears ruling
SUGAR.