The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-11-07
HARTWELL, c


HARTWBLL. c. ].
This is a motion by one Ching Tai,
by his attorneys, r. w. Breckons and
Wade Warren Thayer. setting forth
that he is a prisoner in Oahu Peniten-
tiary; that October 10, 1907, he APP
piled to the Circuit Court of the First
Circuit at chambers for release from
custody by writ of habeas corpus; that
October 81 the court denied his appli-
cation and that he has perfected his
appeal to this court and moves to be
admitted to bail pending the appeal.
The petition for the writ AYERS that
the petitioner was restrained by the
High Sheriff at Oahu Jail under a
mittimus, a copy of which is attached,
issued out of the First Circuit Court
by the Third Judge thereof January
26, 1907, to the High Sheriff, reciting
that Ching Tai, having been convicted
in the Circuit Court of the First Cir
cult of the offense of being present at
a place where gambling games were
carried on and sentenced to six
months Imprisonment and $3.50 costs
and directing that officer to take said
Ching Tai into his custody land to
cause said sentence to be executed"
The petition further ayers that the
petitioner excepted to the judgment
and that having executed a bail bond
for appearance before the Supreme
Court when required he was released
from custody by the High Sheriff; that
the bond is still in force no proceed
ings having been taken for its for
fixture; that the petitioner has abided
by it's requirements, but that October
II the High Sheriff unwarrantably,
illegally and without right of process
took him into custody and restrained
him of his liberty.
The High Sheriffs return, he pro-
ducing the person as required by the
writ, shows that said Ching Tai was
in his official custody, being imprison-
ed in Oahu Jail by virtue of the judg-
ment upon which the mittimus referred
to was issued; that it's execution was
stayed pending the decision on the ex-
ceptions to the judgment, and that
October z, 1907, the petitioner, through
his counsel Mr.. r. w. Breckons, volun-
tarily abandoned his exceptions and
October II, a decision was rendered by
the Supreme Court dismissing them,
notice of the decision being the same
day filed with the clerk of the Circuit
Court.
The Circuit Judge, after hearing the
case upon the petition and return,
denied the petitioners application to
be released from custody.
The petitioner does not ask to be
heard on the petition-he does not wish
it to be disposed of now-but merely |
that his motion for bail be granted, |
claiming in argument that he ought |
not to be held under the mittimus as |
it does not appear that an order was /
made by the Circuit Court in which |
he was convicted directing the officer, ,
by reason of the dismissal of the ex-
ceptionS, to arrest him and execute the |
Judgment as required by the mittimus.
This is not a case under Sec. 2774 |
r. L., continuing the right of bail after
since no proceeding is
pending to secure a review of any
action of the court in which the petit
toner was arraigned, tried, convicted
Dr. sentenced
Under Sec. 2079 H., Until judgment
Is given, the court or judge may re-
nand party, or accept bail for his
from day to day, or may
place him under special care and Gus
-ody, as circumstances may require"
Under this section the granting of bail
IS discretionary and while it is not
desirable to consider the merits of the
ease in advance of argument, the court
n giving it's judgment, after looking
1t the record which has been made
part of the motion, under all the cir
denies the motion.
r. w Breckons and w. w. Thayer
or petitioner; NJ. F. Prosser, for the
General, contra. (