The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1902-06-06
SUPREME COURT
DECIDES AGAINST
WALTER c. SMITH
Continued from page A.

not direct contempt. The recital Is
that walter G. Smith was guilty of a
contempt or this court by publishing
| and printing a certain statement and
cartoon. which said state
ment and cartoon was circu-
lated and published in the court room
In the court house in Honolulu during
| the trial ." This is not a state
ment that the matter was circulated
and published in the court room or
caused to be so circulated and publish
ed by Smith: IL Is not a recital OF a
conviction OF Smith for contempt by
publishing and printing" and by cir
culating and publishing in the court
ROOM In my opinion, as stated above
the printing and publication generally
away from the court room may have
been by Smith and the circulation and
publication in the court room may
have been by others for whose acts
Smith would not be criminally respon-
slble.
1t may be remarked in this Connection
that IL Is not to be presumed that the
court or the clerk issuing the mittimus
intended or attempted to make therein
an untrue or incorrect recital as TO
what the conviction or judgment was:
and IL IL had been intended or attempt
ed to state in the mittimus that the Pc
titioner had been convicted or adjudg
ed guilty OF circulating and publishing
In the court room, such statement
would have been untrue and Incorrect.
After the introduction of the evidence,
Circuit Judge Humphreys (the three
judges of the Circuit Court sat togeth-
er during the proceedings, but in what
caracity or whether legally or other
wise L need not say), delivered the
opinion OF the judges or of the court
and in concluding said: ut is the unan-
imous opinion OF the judges OF this
court that the defendant should be
held guilty as charged in the complaint
herein" Following him Judge Gear.
presiding at the term. said: The
judges have unanimously decided that
this matter published has constituted 4
contempt OF court as charged in the
complaint or affidavit and / therefore
find and adjudge you guilty OF con-
tempt OF court as alleged and set out
in the affidavit on file and ask you
Cow II you have any reason to offer
why sentence should not be passed
upon Won And will state
now that the court has considered with
both the other judges and come TO the
conclusion as to proper sentence to
be pronounced. having taken that into
consideration in extenuation of the Of
Tense. and IL is therefore the judgment
OF this court that you be and you are
hereby adjudged guilty OF contempt of
court as set forth in the affidavit, and
you are sentenced to Imprisonment in
Oahu Jail for the period of thirty days
without hard labor" Clearly the adj
judication of guilt was of the offense
charged in the affidavit and that, as
already stated, was constructive con-
tempt only and not circulation or
publication in the court room.
Going still further, and assuming
that the paragraph of the mittimus in
question Is q recital of a conviction of
Smith of n contempt by printing and
publishing and by circulating and pub
iishing in the court room, and assum-
ing that such finding OF the court be-
low cannot be disturbed on nabeas
corpus even though there be no evil
denCe 10 support ii. am or the opin-
ion that the sentence and mjttimus
are invalid because the court had no
jurisdiction TO impose the one or issue
the other in the absence OF a conviction
or judgment of guilty OF that offense
Ohis. OF course, in View of my conclu-
sion. to be hereafter stated. that the
Circuit Courts of this Territory have
no authority to punish for construc-
tive cOntemptS). The authorities above
cited sufficiently cover this point. The
principle is the same where the con-
Viction Is of an offense which the court
has no jurisdiction TO punish and the
sentence and mittimus are for another
and different offense. as where there is
no conviction or judgment at all.
Has the Circuit Court OF the First
Circuit power to punish for construc-
eral questions have been presented and
argued.
In August. 1883. the legislature OF the
monarchy passed an act (Chap. ~,
Laws Of 1850 the second section OF
which reads as follows: Constructive
shall not hereafter be pun
ishable as such" This language. taken
by Itself. IS plain-so plain as TO leave
no room for construction. II is con-
teuded. however. that read in connec-
tion with the two other sections OF the
statute. and In view OF the causes that
led To- its enactment. II must be con-
strucd TO refer to such only OF corr
struCtiVe contempts as are mentioned
IN section ]. The latter section reads:
THE publication Of proceedings before
any cour; or Judge shall not be- deemed
to BE- contempt. nor shall such publica-
tion be punishable as contempt" and
section 3: THE terms OF this act shall
apply 20 the publication OF all proceed
ings In all courts, or before all judges.
hitherto had. now pending or which
opinion. sections l andS do not
sufficient TO justify the
limitation sought To- be placed upon the
plain language Of section =. II the
words. constructive Coutempts used
In section .. were intended TO refer l
solely 10 the publication OF proceed /
Ings.' mentioned in section !. then sec |
ton : - pure repetition and wholly |
surerfuous Section l OF itself provides I,
that such publication shall not be |
deemed IL be- contempt and further |
hat such publication shall not be pun 1
shahi, as contempt. Under the cir !
the presumption. If any. /
IS that tho legislature did not repeat /
and that IL intended to /
uciud. ia section = something not al /
ready included I'm section !. The pre-
sumption j. further that the legislature i
IN FafTfas tn. word ron FrIerlN.-' knew /
distinction between constructive and /
iirect coutempts. The purpose Of Sec
ion evidently was TO provide that the
proceedings permitted by the act. to
sit. by section /. 10 be published. in
'luded all proceedings, III whatever
,ourt and At whatever times had.
In enactlng this statute the legisla-
.ure doubtless had in mind certain
asses then recently decided by the Su-
,rcme Court but il is n mistake 10 sup