The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1903-08-07
FERRIS is
IN SHADOW
Of DEATH
His Appeal Fails
In Supreme
Court.

George e. Ferris, alias Kentucky Bill
has had his fate decided-at least b.
the Territorial courts-in a unanimou
opinion of the Supreme Court handed
down yesterday. 1t is adverse to him
Els exceptions to conviction and sen
tence for murder are overruled ant
the verdict of the jury Is held as no
having been contrary to the evidence.
Ferris was sentenced last September
by Judge Gear to suffer the deatl
penalty. His appeal delayed executive
action in fixing the date for carrying
out the sentence. AS the decision Of
the appellate court is unanimous ant
disposes of the constitutional points
raised on behalf OF Ferris with cita.
tions of American authorities, 1t Is i'm
possible that Ferris will be advised ol
encouraged to take an appeal to Wash.
ington. Besides the necessary pre-
limlnary steps for such an appeal have
never been taken.
Justice Perry is author of the opin-
ion, of which the syllabus is as follows:
LAW POINTS DECIDED.
A party who neglects to claim his
right Of challenge to the grand jury,
before they retire, valves it, although
he may be imprisoned at the time.
The right, If any, of an accused to
have the assistance OF counsel at the
impanelment of the grand jury, is
waived If he neglects to claim it, even
though imprisoned at the time.
Where one who is detained in custody
awaiting action by the grand jury does
not notify the court that he Is finan-
cially unable to employ counsel for his
defense and does not request the as
signment of counsel, 1t is not error for
the court to fail to make such assign
ment prior to the arraignment.
At the arraignment a deputy of the
Attorney-General may read the indict-
ynent.
Upon a motion to discharge defend
ant, made after plea of not guilty, on
the ground that he has not been duly
arraigned. one who, with the acquies-
cence of all concerned, acted at the
term of court at which the indictment
was presented as n deputy of the At
torney- General must be presumed, in
the absence of any showing to the con-
trary, to have been duly authorized to
act in that capacity.
The use of Intoxicating liquors by
and before the final submission of the
case. such liquor having been furnish
ed by one Of their own number, will
not. in the absence of a showing that
prejudice to the defendant resulted
therefrom, vitiate the verdict.
A court of record may, even at a SUBJ
sequent term, cause amendments to be
made to the minutes OF its proceedings,
IN ha hnf a
same may conform to the actual facts
and truth of the case.
Verdict held not contrary to the evil
dence,
4 CONSTITUTIONAL.
nThe defendant was convicted OF the
offense of murder in the first degree
and sentenced to death. The case comes
to this court on thirty-one exceptions"
the court says.
upon the calling of the first witness
for the prosecution the defendant OBJ
jected to the taking of any testimony
and moved for n direction to acquit on
the grounds, (a) that he had been de-
prived of the right, claimed to be Sc
cured to him by the Fourteenth |
Amendment to the Constitution, to be |
present at the impanelment of the |
grand jury which returned the indict- |
ment against him and also of the right, |
claimed to be secured to him by the |
sixth amendment, of having the aid |
and advice of counsel in such impanel- |
ment, (b) that he had not been arraign- |
ed upon the charge presented in the in |
dictment and had made no plea there |
to, and that there was an untrue en- |
dorsement upon the indictment to the |
effect that he had pleaded guilty there |
to, and (c) that he had been deprived |
OF trial of his cause before the reg
ular jury for the August, 1902, term of
the court and had been compelled to
proceed to trial before another jury"
The court quotes the rules relating to
grand juries and comments thus:
The indictment against the defendant
was found by the grand jury mpaneled
for the August term, 1902, of the Cir
cult Court of the First Circuit. At the
time OF the impanelment of that jury,
the defendant was in jail held to an
swer for the offense for which he was
subsequently indicted. He made no re-
quest Tor leave to be present at the
impanelment. No cause of challenge is
shown or claimed to have existed.
The right to challenge a grand jury
panel or an individual Juror did not
exist at common law but is statutory
only. In this Territory II is given by
rule OF court, and in order to avail
must be exercised before the Jury re-
tires. The privileges so granted by the
rule may be exercised or not by the
accused at his option and IL he knows
of no sufficient cause of challenge or
for any other reason sees fit to waive
the privilege, he may do so. If the ac-
cused expresses no desire to challenge,
tine court may properly regard the ST.
lence as a waiver. The fact that the de-
fendant was in Jail at the time of the
impanelment does not, in our opinion,
alter the case.
COUNSEL NOT DENIED.
With regard to the exception that the
defendant was not represented by
counsel in preliminary proceedings