The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1910-04-01
DENY WRIT OF
HABEAS CORPUS
Supreme Court Rules That Con-
spirators Must Stay
in Jail.

The supreme court Of the Territory
yesterday refused to grant writ of
habeas corpus on the petition of Ma
kino, Negoro, Tasaka and Sega, the
four convicted Japanese strike con.
spirators. The opinion of the court,
denying the writ, is based on the
ground that the matter was previously
presented on exceptions, which were
overruled, and therefore has been ad.
Indicated by the court. The opinion,
written by the chief Justice, is as fol-
lows:
"The petitioners applied for writ
of habeas corpus to obtain release from
imprisonment imposed by a judgment
of the circuit court of the first circuit
in which they are tried upon the com.
plant of the high sheriff charging them
with conspiracy and convicted of con-
spiracy in the third degree, the verdict
being rendered by only eleven jurors
the defendants consenting to the with
drawal of one juror during the trial.
They moved in arrest of Judgment on
the same grounds upon which the petit
ton for a writ of habeas corpus is has.
ed, excepting to the denial of the mo-
ton. The exception was allowed and
brought here from the circuit court,
which after elaborate argument and
full consideration were overruled. 1t
was solely upon these grounds, all of
which are set forth in the opinion of
the court GO Haw. ny, their substance
being that the defendants were held
under complaint of the high sheriff
and not under an indictment, that a
juror was withdrawn by consent and
that evidence claimed to be irrelevant
was allowed, that the petitioners claim,
as they did in their bill of exceptions,
that the Judgment of the circuit court
was void. The attorney for the petit
TONERS, who represented them at the
trial and at the hearing on the excep-
tions, says that this court gave full
! consideration to these matters and that
he could hardly ask to reargue them
but he desires the writ to issue in order
that the petitioners upon being remand
ed may appeal to- the United States
Supreme Court. In re Nelson, 131 u.
s. 176, is cited as authority for dis
charging pIlsOHeT lIoH cuSloug VI
habeas corpus if the judgment under
which he is held is void. Such undoubt.
edly is the law upon the subject. But
the difficulty of discharging the petit
TONERS from custody on this ground is
that by final adjudication we held
that they were legally tried, convicted
and sentenced, and that no new matter
is stated and no argument or reason
is suggested for holding otherwise.
"Under Sec. 2054 r. L. the petition
ers are pot 'entitled as of right to de-
mand and prosecute the said writ, and
by Sec. 2055 R. L., the issuing of the
writ is discretionary with the court
Under Sec. 755 U. s. Rex. st. the writ
issues unless it appears from the petit
ton itself that the party is not en-
titled thereto, and 'need not therefore
be awarded if it appear upon the show
ing made by the petitioner that if
brought into court and the cause of his
commitment inquired into he would be
remanded to prison. Elk parte Terry,
1913 U. S. 301. This court 'has the
right to examine its own records and
take judicial notice thereof in regard
to proceedings formerly had therein by
one of the parties to the proceedings
now before it, Dimmick V. Tompkins,
1914 U. s. $40, SAB; and see in re Board.
man, 1859, U. S. 80. A.
fThe writ must therefore be denied
and it is SO ordered. Z"