Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1903-10-06
Attorney MagOOn Discusses
Infamous Punishment Decision
SAYS MANKICKI THEORY HOLDS GOOD.

1
sons guilty Of misdemeanors must be
indicted before they can be put upon
their trial, has assumed such import
lance, on account OF the recent decision
Of one of our Circuit Judges, that I
have ventured, being Of the opinion
that indictments in such cases are not
proper, to make public my views upon
the subject.
| wish to state at the outset that
intend in no way to criticise the Court
who rendered the decision, but merely
to exercise the prerogative that all cit
liens possess, of expressing dispas-
sionately, their opinions on matters
affecting the welfare Of the community
in which they live.
Natural Prejudice.
In discussing constitutional ques-
tons, people are generally prejudiced
at the outset, against anything that ap-
pears on its face to violate the funda-
mcn,al rights that are popularity sup
posed TO be contained in the Constitu-
ton of the United States; and are
prone to conjure up all sorts OF evils.
They are somewhat in the position of
a timid person who is frightened OF an
apparit.Un. or an evil omened dream
No amount Of assurance can dispel
their fear.
What Constitution Lacks.
II will be surprising to many to learn
that there is no provision in the Con-
stitution proper, OF the United States
that requires that anyone accused of
crime be charged by an Indictment
found by grand jury. The fifth
amendment to the Constitution con-
tains the provision, that NO person
shall be held to answer for a capital
or otherwise infamous crime, unless on
a presentment or indictment OF a grand
jury nor be deprived of life. liberty or
property, without due process OF law"
This amendment is certainly broad
enough to cover all persons, whether
in a State or Territory. but though
the language is positive and emphatic,
and without Limitation as to persons,
the United States Supreme Court has,
In constituting this amendment, held,
over and over again, that 1t does not
apply to the States; that is, that the
states can try person accused of a
capital or otherwise Infamous crime,
without presentment or indictment by
a grand jury. A still more important
rule has also been established by that
Court, which is, that the fifth amend
ment applies only to the Court OF the
United States.
Letter and Spirit.
Strict adherence to the letter of
statute without regard to its spirit,
would often times work ipcalCulable
hardship. not only to the community
as whole, but 10 individuals, SO an
other and most important rule has been
firmly established, and that Is that the
spirit rather than the letter of the law
should control. This rule is Of such
vital importance In this discussion,
that at the risk OF proliXity. feel JUS
titled in quoting from one OF the latest
decisions of the Supreme Court of the
United States, rendered in the case OF
The Territory of Hawaii against Osaki
Mankichi.
Mankiehi Decision.
If the words OF the Newslands resO-
luton, adopting the municipal legisla-
ton of Hawaii not contrary to the
Constitution OF the United States be
literally applied. the petitioner is en-
titled to his discharge, since that in
strument expressly required (Amend-
ment 81 that no person shall be held
to answer for capital or otherwise
Infamous crime, unless on a present.
ment or indictment OF grand jury
and amendment 81, that in all GRIM
inal prosecutions the accused shall en-
JOY the right to speedy and public
trial by an impartial jury of the state
and district wherein the crime shall
have been committed But there IL
another question underlying this and
all other rules for the Interpretation
OF statutes. and that is, what was the
intention of the legislative body? With
out going back to the famous case OF
the drawing Of blood In the streets OF
Bologna, the books are FULL OF authori-
ties TO the effect that the intention Of
the lawmaking power will prevail, even
against the letter OF the statute; or. as
tersely expressed by Mr.. Justice
Swayne in Smythe v. Fiskc A
thing may be within the letter OF
statute and not within It's meaning,
and within its meaning. though not
within It's letter. The Intention OF the
laWmaker is the law A parallel ex-