The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1908-06-04

[ lfIal OF Il case tutltttQ marry L. ~hA4iS
V. c. A DeCew on this Goth day of
! April, 1908. Each sentenced to pay a
! fine of $1,000 that after the judg-
ment and sentence the petitioner, hav-
/ ing refused to pay the fine, was on the
same day ordered by the magistrate to
/ be imprisoned by the respondent until
/ the fine should be paid, the term of i'm
/ prisonment not to exceed ten days.
The return alleges that the petit
| toner's contemptuous conduct consist
| ed, among other things, in his aggres-
| sive. noisy and disturbing acts and do
| ings while engaged in a fight with
Thompson, during which the petitioner
was aggressive in manner, retallated
the assault, and by scuffling, graphing
with and fightinU Thompson did greatly
disturb the trial and proceedings then
and there being had;' and, further,
that on the same day, April 20, the
magistrate caused mittimus to be is
sued setting out that the petitioner had
been convicted of contempt of court in
that he had taken part in the fight
with Thompson in open court while it
was in session and in the actual trial
of the case and commanding the re-
spondent to take the petitioner into
custody under the judgment and SEN
tence above set out, and, on April p,
issued another mittimus amendatory of
the first which, through inadvertence,
was lost or destroyed, and that the pc
titioner was being held under the NIT
timus referred to in the petition.
The petitioner filed an answer April
25, alleging on information and belief
that the judgment set out in the re-
turn was not entered prior to his ar
rest, denying the averments concern
ing his aggressive conduct and affirm
ing that "the fight and disturbance oc-
cured in the manner set forth in his
petition
When the case came on for hearing
the petitioner produced a witness who,
after testifying that he saw in the
district court IAN alteration or diff
Guilty between the petitioner, Harry T.
Mills, and one Frank E. Thompson"
was asked to describe it. The respond
ent's objection to the evidence was
sustained and also his objection to evil
dence offered to show that the petit
toner was assaulted by Thompson and
simply endeavored to defend himself
committing no overt acts, and that he
was not the aggressor. The petitioner,
although allowed to do So, offered no
evidence to show that the judgment
mentioned in the return had not been
rendered prior to his arrest. After
hearing counsel the circuit judge re,
manded the petitioner who appealed to
this court.
The questions presented by the case
and which have been argued with
clearness and precision are as follows,
% Was the petitioners APP
peal from the sentence imposing upon
him a fine of SO for contempt allow
able under Sec 1858 r. L., Appeals
shall be allowed from all decisions of
district magistrates, whether civil or
criminal. to the circuit court of the
same circuit Notwithstanding the
provision in Sec. 1860 r. L. that Meth
ing herein contained shall be construed
to permit an appeal to be taken from
any order by any judge or magistrate
allowing any warrant, attachment.
writ or other process, or for any other
order of a like nature" and if this
question is answered in the negative
(2) does the mittimus comply with the
requirement of Sec. 1913 r. L. that
Whenever any person shall be adj
judged guilty of any contempt or sem
fenced therefor, the particular circum-
stances of the offense shall be fully
set forth in such judgment and in the
order or warrant of commitment" and
if this question is answered in the
affirmative CD is it an offense per Sc
to take part in fight in court room
while the court is engaged in the trial
of a cause, or, as claimed by the petit
TONER is the fighting reprehensible on
ly when provoked by the party CEN
sured or carried to an extreme unnec-
essary for self protection?
"a At common law an order punish
ing for contempt is not appealable and
cannot be reviewed, every court being
regarded as the exclusive judge of a
committed in its presence or
against its process. Elk Parte Kear-
ney. Wheat. So; New Orleans V.
Steamship Co., 20 Wall. 3S7; Hayes V.
Fischer. 102 U. S. I21.
Onomea Sugar Co. V. Austin. 5 Haw.
604 QSS6), discusses the statute above
quoted, holding that exercise of 1.-The
power of court to maintain its dig
nifty by summary punishment for con-
tempts" is not appealahle under the
proviso that the general statute shall
not be construed to permit an appeal
from orders allowing warrants, attach
mentS, wits or other process, 'or Tor
any other order of like nature
The common law enactment of 1892
had not then been passed, but is now
in force except as otherwise provided |
by statute, precedent or usage.
The legislature has since provided |
Act u S. L. 1908 (Sec. 9073 r. L.. that
Every judgment, sentence or commit |
ment for a civil contempt or for con- /
structive or indirect criminal contempt |
shall be subject to appeal" implying /
that no appeal is allowed from a COM
for a direct criminal con- |
tempt. In re Amin, II Haw. 336. Cues |
ton 1 must be answered in the mega
tive.
CD II is suggested that the mittimus
S defective in failing TO SCI forth such |
particulars as. who was the aggressor.
whether the fight was with natural or
arms. fists or deadly weapons, |
whether both of the combatants or /
only one was to blame, whether either
was fighting merely in defense of life |
or limb. 1t is urged that fighting in
court may be proper or improper. jus
tifiable or unjustifiable. according to
the particular circumstances of the