The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-03-13

Wis, waving the paper before the juror.
Yes, l saw it, said Motley
did you read these words above and
below, More judicial good cheer and
Bless you McSwillegan. bite her again
asked Davis, and everyone laughed
when the lawyer yelled out the name
MCSwillegan.
Motley said he read the words, and
was excused c. A. Long, another
juror, was then called and gave the
same testimony. In the examination of
the third juror Humphreys took a hand
He wanted to know if the juror knew
what and whom the picture referred to.
"rhe Mccarthy case said the witness.
THE picture represents Judge Gear
Mccarthy and the woman
The other two jurors We're recalled to
add this important element to their tes-
timOny.
Davis went through the entire panel
of twelve jurors with McSwillegan and
the judges blessing, while Gear laughed
as each witness but one said the pic
ture represented him and Mccarthy.
One juror had not seen the paper, and
Juror Cooley would not admit that
Swillegan looked like Mccarthy or even
like a man at all.
1T looks like monkey" said Cooley.
Isn't that picture of man. said
Davis.
1T might be monkey" said Cooley.
But isn't it a man and a woman?
repeated Davis.
1T doesn't look like a man to me,
replied the witness.
''Well what is this monkey form a.
dOing?" asked Davis.
Cooley said that the nOn-descript was
biting the ear of a woman while Gear
was pictured extending his arms in
the attitude Of benevolenCe and saying
"Bless you, MCSwillegan, bite her
again"
One of the Jurors was asked by Geal
if he thought the likeness Of Gear was a
good one. The witness said mot very
1t is generally conceded that the ar
tist added a bit to the outlines of the
judges form.
Davis introduced the record in the
two cases against Mccarthy, and Bit
ting called Col. Jones to the stand to
testify to the decision Of Gear discharg-
ing Mccarthy the first time, and the
case for the court closed.
Attorney Smith rose to correct his
statement as to the intention to leave
out of the answer an express disclaim-
er of any intent to show disrespeCt fOl
the presiding judge He said that the
document had been prepared late last
night and he desired leave to amend bS
addingStO the disclaimer the words "Ol
to throw contempt on the Honorable
NutOlbt H. Artblf IltSllAlll5 JlA6F VI 9tllN
court" Humphreys then explained hi;
reason for having raised such ques.
tiOn i'm the first place. 1T was because
to my mind the manifest tendency anC
purpose Of the cartoon was to persuade
and influence the jurors to the belle
that the presiding judge had entered
into a league and conspiracy with cri
mNals," s&d the first judge, $50 tina
/ the jurors would take the bit in thei
own mouths and convict without refer
ence to the evidence or the instructions
/ of the court"
/ Attorney Smith said he had no evi
dence to offer, and Davis proceeded t,
argue. He cOntCnded for a sentence un
der the general inherent powers of tht
court to punish for contempt. "IhC
court was created by section 81 of th
Organic Act" he said, "and is therefore
/ constitutional court, and has inheren
/ power to punish contempt summarily
| This power cannot be limited by an!
act of a legislature" Under this pro
vision Davis claimed that the Hawaiian
statute prohibiting punishment for con
structive contempt did not apply.
Davis said that the picture had beel
| circulated in the court house, that i
was a gross libel and not a report of tn
! proceedings of the court, and was an
/ effort to coerce and interfere with tn
| course Of Justice. THE enormtty o
/ this cartoon is the more apparent" m
said, "When we consider that ii attack
the guarantee of the 9Th amendment T.
| the constitution, which says that ever,
man shall have the right to a fair AM
| impartial trial" Davis caused SOM
/ amusement by reference to his own con
/ tempt case
1T was only a bill of exceptions tina
was before the court i'm chambers" sal
the lawyer, "and yet I was fined an
kept u days i'm jail, and the william
| owen Smith, who was then the attOrne
| general, thought ii his duty, unlike tn
attorney general now to come int
court and press the charge and keep m
incarcerated and he succeeded admir-
ably"
The amicus curiae said that If Gea
had done wrong he should be accuse
at Washington and closed with hint
that there were others who ought L
take the place Of Smith. Behind hir
are those who are pulling the string
and trying to bring the court into dis
| respect. If we could only get at thOs
who are behind it would be better bu
we have to take the man whose res
possibility is admitted and apparent"
Attorney Lewis confined himself &
/ law. His first proposition was that tn
! Hawaiian law prohibiting punishmen
for contempt had been Te-enaCted b
/ Congr SIS in the Organic Act and there
fore had the power of an act of Con
gress. Next Lewis discussed whethe
IL was actual or constructive contemp
/ that was charged. "The publication
was solely and simply with reference [
the first case, which had closed" h
said. "It Is well established by a deci
sion just rendered I'm Chicago, i'm tn
case of the Chicago American wher
Editor Hearst and others We're cited fO
contempt, that II is not contempt to cri
ticize the proceedings in a case after
has closed. In that case the editor
We're held to be i'm contempt for maxim
such criticism, but they We're release