The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1903-09-25
JUDGE GEAR
HEARD FROM
Renders Ills Promised
Decision in Tenor
Expected.

Judge Gear yesterday morning rem
dered his decision, that had been await
ed for seven days, on the constitution
al question relative to what constitut-
ed Infamous punishment, and as such
requiring the indictment of an accused
person by a grand Jury before it could
be inflicted.
The substance of the decision is that
person accused of any offense for
which he is liable to be imprisoned in
the Territorial prison has a right to
the benefit of a grand jury investiga-
ton. Though the sentence may be only
small fine, yet the fact that the con-
yicted person may be imprisoned, in
default of payment, to work out the
penalty at one DAY for fifty cents
places him under the protection of
that provision of the Constitution
which says that no person shall be
held to answer for capital or other
wise Infamous crime unless upon pre-
sentiment or Indictment of grand
jury.
Judge Robinson, who sat with Judge
Gear at the rendering of the decision,
concurred in the conclusions.
OTHER DEFENDANTS HELD.
While the defendant at bar was dis
charged, the cases of fifty and odd
more from the District Court were con-
| a n DiV time
for their investigation by the grand
jury. A shorter space had been ap-
pointed for some of them. but all We're
put a week ahead on the statement of
Attorney General Andrews that it
would be physically impossible for the
grand jury to accomplish the added
work sooner.
DAVIS BUTTS IN.
George A. Davis, on the continuance
being announced. from between set
teeth ground out the remark:
'They may be released before that
time on habeas corpus"
There is no habeas CORPUS before
the court" Judge Gear answered.
Il will apply for a writ of habeas
corpus for one of Them Davis -ritled
forth as the last word.
THE TEST CASE.
Wa Sin was the man set at liberty
by the decision. He had appealed from
conviction in the District Court of
selling a poisonous drug-to wit:
: opium, or a preparation thereof-with-
out license, in violation of Sec. III
of the Penar Laws of 1897. This law
provides that anyone who violates its
provisions "shall be fined not less than
fifty nor more than five hundred dol
lars, or be imprisoned at hard labor
not exceeding six months in the dis
, erection of the court"
!, Concluding an opinion of thirty-three
| typewriter pages Judge Gear thus de-
cides:
IF, as decided in 81 Fed. Rep. 206
: a judgment of imprisonment in the
state prison at hard labor for two daya
was an Infamous punishment, and
therefore the defendant was released
! because of not having been indicted by
a grand jury, it is incomprehensible
how this Court can have jurisdiction 10
adjudge imprisonment in the Terrific
rial prison at hard labor for a much
longer term without an Indictment OF
| SIdHu jury.
1t is the opinion of the Court that
the punishment which may be inflicted
, in this case under the statutes of this
territory, is an infamous punishment
1T it is not, then there is no infamous
punishment for any offense regardless
of its gravity, and this Territory NAV
by mere failure to legislate render
absolutely imperative in this Terri
tory the 5th Amendment to the Con-
, stitution of the United States. Such a
proposition is unthinkable and absurd
: The punishment allowed being in
famous, the defendant is entitled tc
an indictment by a grand Jury before
| ne can be placed on trial for the al
legged offense, and until such indict-
| ment is found this Court has no iuris-
dlctlon of the offense charged and
must therefore discharge the defend
ant, and it is SO ordered
Deputy Attorney General Peters an.
peared for the Territory, and r. w
Breckons for the defendant.
THE REASONING.
r Much the greater portion of .he
I opinion consists of citations from
, Federal and state decisions. some NJ
s Whlch nave appeared in the Adyer.
= Users previous reports of the mat.
/ Ter. Quotations from laws of the Ter.
t rltory and official reports were used Il
1 show that Oahu prison, where all Of
renders sentenced to Imprisonment If
: the Territory are confined. is the Ter
/ rltorlal penitentiary wherein imprison
'iieht Tor any term however short con.
! sututes Infamous punishment.