The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1910-05-27

by Ching Kim Hee in his own affidavit
Humphreys adds that when he asked
Breckons to allow a continuance, he
found much to his surprise that the
district attorney would not do so, Brec-
kons appearing to believe that Ching
Kim Hee did not intend to return to
Honolulu
The judge in his decision states that
on February Is Ching Kim Hee was
indicted on the charge of having false
ly represented himself to be a natural
lied citizen of the United States, and
it was under that indictment he was
arrested in San Francisco
Tie court says that from the show
ing made, he concludes that there was
no intention on the part of the de-
PENDANT deliberately to evade the CON
dition of his recognizance. "The com
bination of circumstances shown by
the affidavlts sufficiently accounts for
the nonappearance of the defendant on
the first day of February. 1t is also
to be noted that the district attorney
knew that he defendant proposed to
make the voyage to New York, and was
aware of the attending uncertainty as
to the date upon which the defendant
would be able to return to Honolulu.
In my judgment, he might well have
consented to a continuance of the mat.
ter upon being shown the letters re-
ceived from the captain of the steamer
by Mr.. Humphreys, as these showed
that the defendant was on his way
back from New York.
g am of the opinion that the defend.
ant would be entitled to relief if the
rules of law applicable to such a case
as this permitted it. Bail bonds are
taken to insure the presence of de-
PENDANTS in court to abide the judg-
ment, and not for the purpose of en-
riching the government. And while
forfeitures are properly declared and
insisted on whenever there is manifest
ed deliberate intent to evade trial
or careless indifference to the obliga.
tion of the bond, the penalty may very
well be RENTED where there has been
lack of any such elements and the
failure to appear has occurred through
innocent Misunderstanding or by reason
of uncomfortable circumstances.
1.-THE proceeding for the defendant s
deportation was not criminal issue.
"The provisions of Section 1920 of
the Revised Statutes do not, therefore,
apply.
But it has been, and / think prop.
erly, held that without statutory author
ity the courts have inherent power TO
admit to bail the so.called defendant in
deportation proceedings up to the time
when the order of deportation has be-
come final.
"The power to admit to bail implies
the power to declare a forfeiture of
the penalty and the power, in a proper
case, TO remit the came.
The Supreme Court has decided that
the appeal provided for in section 10
of the Chinese Exclusion Act of Septem.
Der 10, 1888, is an appeal to the Dis.
trict Court. In the absence of any
qualifying provision, take this to
mean that such appeals are taken to
the court in term.
"The order of February 18th which
declared the forfeiture, being a final
order, it cannot be vacated or reopened
at this, a subsequent term.
Matters placed in the jurisdiction
Of this court generally are cognizable
only in term. In other words, the
court has jurisdiction in vacation only
by force of some special statutory pro
vision.
"Tne motion is denied"