The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-02-27

The appeal of Osaki Mankicho in the
famous transition period cases will go
first TO San Francisco, before it reaches
the United States Supreme Court at
Washington. This, however, is not
expected TO affect in any way the stat
us of the appeal now before the 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, and it is in order
to avoid any possibility of error the
habeas corpus case of Osaki 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 to 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 F. NJ. Brooks and George
Davis have prepared their brief in re-
ply to the argument of Attorney Gen
eral Dole in the United States Supreme
d.
Washington by the Alameda yester-
day. Mr.. Brooks will probably leave
within a month to present the appeal
in person to the Supreme Court, ard
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, j. e.. that the court erred IN (
granting a writ of habeas corpus. 1t is
| submitted and contended that the
| United States District Court rightfully .
| assumed jurisdiction in this case be- |
| cause II 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 grand jury duly and regu-
larry summoned in accordance with ar
tcle of the constitution of the Unit
ed States"
The further argue that Judge Estee
did not err in assuming jurisdiction
of the case, because it clearly appears
by the petition filed in that court 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:
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 point?
THE Bible and the altar are and
were, as much adhered to and respect
ed at the time of the passage of the
Newlands resolution in Hawaii as in
the State of California; the methods of {
tryy hA
same; the affairs of the government !
it was claimed by those in power, 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-S
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 Senate Of the United
States that this was civilized coun-
try, with a system of laws, with courts !
with religion, with intelligence, with
wealth. and that the time was ripe |
for annexation, and so Congress ac- ,
the statements that the Hawaiian Min
listers and commissioners made at
Washington as true, and the constitu-
ton came here with the flag. and it
was we'll known that the constitution {
would be in force when the cessfon of
these Islands was completed: and the
Indictment of the defendant by a grand :
jury was, and is, a constitutional right n
which WIN the statute of an extinct oligar- o
chy cannot override or take away" I
It is further contended that the =
Newlands resolution Itself extended the '
to Hawaii, and that an u
Indictment by a circuit judge is null q
and void The verdict of nine Jurors
1t is argued is in direct violation of the 1!
constitution, and a violation of the
common law of England a.
In conclusion the petitioners say:
There were extraordinary reasons
Tor the Interference of the United q
states District Court to grant this =,
writ of habeas corpus. Circuit Judge ''
scar has issued a writ of habeas cor
ous and discharged the prisoner upon
he ground that his trial, conviction
ma sentence were absolutely null and |
odd and the Territory of Hawaii in
he absence of q statutory provision
flowing the Territory to appeal from
decision and order discharging a
prisoner upon a writ of habeas corpus
ppealed to the Supreme Court of the
territory, and the Supreme Court of Ca
he Territory held that the conviction Pi
ND sentence of this defendant was
egal and valid The case was fully
resented to the Hawaiian Supreme
curt and the Honorable Antonio Per-
Y, who found the bill of Indictment
gainst this defendant. who presided
his trial. and sentenced the prisoner.
at on the appeal in the Supreme
curt. Notwithstanding the protests
lea by the prisoners counsel that he
as disqualified by the provisions of -
ne Act to Provide a Government for
ne Territory of Hawaii. The provi-
on of that act is as follows: -
No judge shall sit on an appeal, or
eW trial, in any case in which he -
ay have given a previous Judgment
circuit Judge Perry is now the sec
M associate justice of the Supreme
curt of the Territory. and was at the
me Of the hearing of this appeal so
lat this honorable Supreme Court
ay be fully cOnyersant with the facts /
TINS case. respectfully append TO -
us brief copy of the brief fled in
lie Supreme Court on the hearfne,
TINS case on appeal. ard