The Hawaiian gazette., 1905-06-20
HOLD HIGH
LANGUAGE
tFrom Mondays Advertiser)


johnson and Jonah Kumalae, who are
serving sentence in Oahu prison fol
conspiracy, by the Supreme Court. G.
w. Ashford and A. S. Humphreys, at
torneys for the defendants, yesterday
fled a petition for rehearing which
contains twenty-seven typewriter
pages. 1t is rather high language the
lawyers named use toward the highest
court of the Territory, as may be seen
from some specimens given below.
The attorneys have also filed in the
Circuit Court motion "to recall nit
timus and to admit defendants to
ball." with notice to the Attorney
General that it will be presented before
Judge De Bolt at 8 O'Clock tomorrow
morning, or as soon thereafter as coun-
sci may be heard.
1t is set forth in the petition that
the Supreme Court in ITS opinion af-
frming the refusal of a new trial Ennis
apprehended and misapplied the law
applicable to this cause" in particu-
lars which the attorneys specify.
Their first contention is that the act
Of the Legislature of 1903, whereby
said Legislature purports to authorize
several separate anu contemporaneou
sessions of the Circuit Court for the
First Circuit, to be presided over by
the judges thereof respectively sitting
solus, was and is ultra wires Of said
Legislature, null and void.
Then they 20 extensively into the
appellate court g sustaining of the trial
court in everything the motion of de-
PENDANTS for leave to withdraw their
plea of not guilty and to be permitted
to file a further plea in abatement to
the indictment. This question re-
wolves upon the legality of the grand
jury that found the indictment against
johnson and Kumalae, the motion re-
ferred to having been made upon the
discovery that one of the grand jurors,
Henry Hickey, was disqualified from
having been convicted of an infamous
offense. After arguing at length to
show that the authorities cited on this
question by the Supreme Court did not
apply to the case, the attorneys quote
the Supreme Courts decision in the
ease of Republic of Hawaii vs.. Coelho
where the conviction was set aside be-
cause one of the trial jurors was dis
qualified from not having taken the
oath of allegiance, and they say:
1--WE submit that it is impossible
for the decision in this case to stand,
while the decision in Rep. VS.. Coelho
is still law in this Territory. If the
Coelho case was correctly decided, then
this case has been incorrectly decided,
and the decision herein should be re-
viewed. If, on the other hand, tho
court shall adhere to its decision in
this case, it owes it to the profession
and the public that the Coelho decis-
ion should be overruled and repudi-
ated.'
Another point is raised and extern
sively argued on the refusal of the
trial court to grant defendants sepa-
rate trials. The claim is set up that our
statute makes special provision for
separate trials in cases of conspiracy,
while the cases cited by the appellate
court against defendants relate to
trials for murder concerning which
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mhn H.
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AZ eoilopoi''lns a." statement "
'no piose'uIion' anu vn the couiI
y. tn IS. uins 'no
Iu ~. INA 'no SI'olntys Say
s'"s tnpo''io'e " lnoiuue sucn
an error, Vi sueh an ac' Vi the tIiai
eoui', as Icing eihoraeeu "i'hih tne
isoie'.on VI 'He eouit' heaven
hhows ,ha' the u,sctetiUh Oh 'riai
courts mas peeh suliciehtiy extended
10y lhe uecislohs Oh our supreme court,
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