The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1906-01-05
THREE WE|GHTY CASES
HAVE BEEN decided
tFrom Thursdays Advertlserl

(From Thursdays Advertlser)
Yesterday was triumphant day for
the Attorney Generals department. 1t
won three weighty cases in the SUI
preme Court. That two OF them were
hard-fought contests is attested by
the fact that strongly worded dissent
ing opinions, by different Justice in
each instance. were filed with the con-
trolling opinions.
The naturalization case is Of such
Importance that, IL decided otherwise
than 1t is, 1t would confound a great
deal of completed litigation, both
criminal and civil. since the annexa-
ton of Hawaii. An enabling or dec
laratory Act of Congress would be the
only preventive Of untold confusion.
AS 1t is, 1t may be very advisable
especially in view of the doubt express
ed by the Chief Justice in concurring
with the controlling opinion-that Con-
gress should be induced to legislate
jurisdiction of naturalization by the
Territorial circuit courts in positive
terms, as well as in such manner as
will legalize naturaliZations heretofore
made by the circuit courts. For, with
but one of the three members of the
Territorial appellate court speaking
without uncertain sound, there is in
ducement apparent for appeals to the
United States Supreme Court which, at
the least, would hold the question in
suspense for perhaps another year.
The gst of each of the decisions is
given below.
ONCE IN JEOPARDY.
A voluminous decision of the SUI
preme Court, embracing majority
opinion by Justices Hartwell and Will
der, written by the former, and a
minority opinion by Chief Justice
Frear, has been rendered in the case
of Territory of Hawaii VS.. Frederick
Schilling. 1t is a writ of error to the
Fifth Circuit Court Judge Hardy.
The court below is sustained in the
trial, conviction and sentence of de-
PENDANT upon an indictment charging
an assault with intent to commit the
crime of rape. This was although, as
the controlling opinion relates:
He pleaded a former trial and con-
viction by the magistrate of the dis
trio of Lihue of the offense of assault
and battery and that the same assault
was charged in the Indictment. In a
supplemental plea he also pleaded that
he was advised that the facts shown
at the trial of the assault and battery
amounted in law to a felony and there
fore that he could not afterward be
prosecuted for the felony under the
statute"
The statute in question provides
that If upon the trial of a person for
s.,lA -l,- fn1n
such person shall not be entitled to
acquittal for misdemeanor, and no
person tried for such misdemeanor
shall be liable to be afterward prose-
cuted for felony on the same facts.
Judge Hardy overruled the pleas,
declining to hear evidence in vertical
ton Of the plea of former conviction.
The majority opinion occupies eight
cen typewriter pages.
Chief Justice Frear's dissent covers
another eighteen pages of similar writ
ing. He contends that the majority
opinion is against the authorities, even
some Of those 1t quotes, but admits
tacitly that the plea of "once in
jeopardy" on another ground than
those on which the majority decided
the case, might have been overruled
when he says in conclusion:
I'm view of the opinion of the ma
jority of the court 1t will be neces-
sary for me to express an opinion as
to whether, aside from the question of
identity of offenses, the alleged former
conviction is not bar on the ground
that there was no former jeopardy be-
cause. as contended, assault and bat
terry was at the time of such convic-
ton an infamous offense and therefore
beyond the jurisdiction Of the district
magistrate who tried that case"