The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1902-06-06
WRIT OF ERROR
IN SMITH CASE
ATTORNEYS PREPARING TO TAKE
CONTEMPT MATTER TO THE
HIGHEST COURT
WILL NOT ASK JUDGE EsTEE FOR
A WRIT.
Chief Justice Will Be Asked to Issue a
Writ to the United States Supreme
Court.

The attorneys for Walter G.. Smith
have given up the idea of asking Unit
ed States Judge Estee to hear a petit
tion for a writ of habeas corpus, and
the matter will be taken direct to the
Supreme Court of the United States.
In view of Estee's views as expressed
in his Marshall decision and other de-
cisions, and in view of the fact that he
would not admit the petitioner to bail,
it is considered useless to attempt a
legal fight in his court. The appeal to
Washington will be by a writ of error,
from the Hawaiian Supreme Court.
The question of bail again comes up in
this proceeding, for if bail be not al
lOwable under such a writ, the proceed
ing is of no use, as the sentence would
expire long before the matter could be
brought to an issue at Washington.
The petition for writ of habeas cor
pus is a dangerous proceeding in such
a case, because it makes possible two
decisions against the petitioner instead
of one as now. If Estee should decide
against him there would be two deci-
sions to knock out instead of one, and
a reversal of the Hawaiian Supreme
Court decision would leave the Federal
Court decision still in effect.
The attorneys for Smith had a con-
ference with Judge Estee yesterday af-
ternoon, and the judge expressed his
willingness to hear the matter. He
was not willing to allow BAIL however.
The judge held that he had no right to
admit the defendant to bail under the
circumstances. This would make the
proceeding before Estee of little use,
as several weeks would probably be
needed to decide the case. The appeal
from Estee, in the event of his deci-
sion being against the petitioner, as is
thought likely, would be to the Ninth
Circuit Court of Appeals, and then to
Washington. Without admission to
bail pending a determination of the
issues, the whole proceeding would be
useless.
In connection with the plan to apply
for a writ of error the following portion
of the decision yesterday is pointed out,
as preventing such proceeding as to
the contempt though, it is claimed, not
as to the habeas corpus proceedings
themselves:
But must we regard this as a case of
constructive contempt under the gen
eral law? 1t may have been such in
fact. We may have found it such if
we had passed upon the question in the
first instance, or we might find it such
if the case were here on appeal or
perhaps even on writ of error. But
must we regard it as such in these
habeas corpus proceedings? The Cir
cult Court is a court of general and
superior jurisdiction. Contempt cases
are not appealable or subject to re-
view by writ of error under our stat
utes. Habeas corpus is a collateral
proceedings. In a collateral proceeding
mere Irregularities and errors cannot
be inquired into as on appeal or err
ror; only questions of jurisdiction can
be inquired into, and every presump-
ton is INDUCED in support of the juris-
dictiOn of a superior court. On appeal
or error, judgments of superior courts
al least if the jurisdiction is limited
may be set aside, If jurisdiction does
not appear on the face of the record
but on habeas corpus they may be set
aside only when jurisdiction affirma-
lively appears to be wanting"
The Biting contempt case, which
went before Judge Estee nearly two
years ago, is the latest decision here on
the propositions involved. In that case
after the Supreme court of Hawaii had
held that it could not review the con-
tempt proceeding on a writ of error, an
appeal was made to Estee, on the
ground that it was a "cruel and un-
usual punishment" to confine a man in
a penitentiary for such an offense as
contempt Estee held that where a
penitentiary was the only prison, the
courts had right to use it, and also
refused to review the case except on
this one point of federal law
The Supreme Court met in session al
3 O'Clock yesterday afternoon and rend-
cred a decision in the matter of the
habeas corpus petition of Walter G
Smith. The judgment of the lower
court was affirmed and the petitioner
was remanded to the custody of the
High Sheriff and spent the night in
Oahu Jail.