The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-02-08


! tempt by answering the question
Following is the decision of the Su-
preme Court in the habeas corpus
case:
ORAL OPINION
| Hartwell. J. There are three cues
! tions requiring adjudication in this
| case. namely: "a Upon the REALTORS
claim that he could not be required TO
answer the question propounded to
; him by the grand jury, because to do
so might incriminate himself; and (2)
! because the question was upon an i'm
material matter; and 80 that no adju-
| dication of contempt was mace.
At the argument on the second ques-
ton, I drew the attention of counsel
to legislation upon the subject in GER
tain states and to the rule of COM
mon law, in the absence of controlling
legislation, that a witness is not privi-
legged to decline to answer an imma-
terial question.
1t is stated in Wigmore on Evidence
that there are nine states and one ter
ritory which have such legislation
superseding the common law. For in
stance, the California statute, which,
! take it, is specimen of the 1egis-
lation in other states, requires not
only that the witness answer questions
legal and pertinent to the matter i'll
issue, but that it is his right to be
protected from irrelevant questions
and to be examined only as to matters
legal and pertinent to the issue The
states having such legisla ton are Cali
fornia. Idaho, Oregon, Georgia, -A.a-
bama, Montana. Mississippi, Utah and
Nevada.
The common law being in force
here. the fact that the question was
immaterial, if it was so, which we do
not decide. would not make the re-
straint illegal The effect of the
statute which precludes prosecution OF
a witness in consequence of testimony
he may give which might incriminate
himself is to take from him the prfvi-
lege of declining to answer on that
ground. That leaves for consideration
the objection that no judgment was
entered
In habeas corpus it is only when a |
judgment is void that the party re-
strained of his liberty is set at large. |
This rule has been laid down in sew
eral decisions. as, for instance, Elk |
parte Oriemon, 10 Haw. 107. The writ |
is not used to correct errors. The |
Circuit Court had jurisdiction of the |
general subject of contempts, of the |
particular contempt charged and or |
the defendants person when the |
charge was made and considered The |
return recites that at two o'clock in |
the afternoon of February l, the de- |
PENDANT being present in the courtroom
as commanded by the citation, and no
good cause being shown to the court
by him why he should not be punish
I'd for contempt, it was ordered and |
adjudged that he was guilty of con-
empt and sentenced to imprisonment
md jail for the term of ten days or |
until such time as he should purge
himself of such contempt.
We are not sure that the oral tes-
imony that at the end of the argu-
nent and in the defendants pres
nee, the Judge said, 1.-The defendant
S sentenced to imprisonment for. ten
lays or until he purges himself of the
but did not then adiudge |
he defendant guilty of contempt, re-
ers to this afternoon proceeding: but
aking the testimony as showing that
he defendant was not present when |
his particular Judgment l have refer
ed to was signed. or on the next day
ore is whether the judgment under
UGH circumstances could be pronounce
d in the absence from the courtroom
f the defendant. We think that
he Terry case disposes of the
question. Elk parte Terry. 12S L.
!. 2S9. The fact in that case was
hat Terry had gone out of the court I
DOM into another room in the build
ng when the adjudication of contempt
,as made.
This judgment, then, can not be de- | 7
Jared to be void. The petitioner is
accordingly. ii
A. S. Humphreys and T. E. Thomp-
IN for the petitioner; F. w. Milver- 8
IN. Deputy Attorney General, for the | 6
erritory.