13 Haw. 570 | Haw. | 1901
Lead Opinion
OPINION OF THE COURT BY
These are appeals from, orders discharging the petitioners in habeas corpus proceedings.
The prisoners had been indicted, tried, convicted and sentenced at the May Term, 1899, of the Circuit Court of the First Circuit. They were convicted and sentenced as follows: Mankichi, manslaughter in the first degree, nine jurors, imprison
These cases are similar to that of In re Ah Oi, just decided, and are controlled by the decision in that case except as to one question which will now be considered.
As remarked in that case, counsel for the petitioners h&ve since the hearing, called our attention to the fact that Mr. Justice Perry, now a member of this court, was the Circuit Judge who found the indictments, presided at the trials and pronounced the sentences in the criminal cases under the sentences in which the. petitioners were held, and suggested that he is disqualified from sitting on these appeals in the habeas corpus cases by reason of the provision in Section 84 of the Organic Act that, “No judge shall sit on an appeal, or new trial, in any case, in which he may have given a previous judgment.” This provision with many others in the Organic Act was taken from the Constitution of the itepublic of Hawaii.
Of course, these hearings are not new trials in the criminal cases in which the petitioners were convicted. It is equally true that they are not appeals in those cases. They are appeals in habeas corpus cases, which were heard by a different Circuit Judge.. The habeas corpus cases when before the Circuit Judge were not new trials or appeals in the criminal cases. That Judge could not grant new trials in those particular cases or entertain appeals in any case of that character. Much less are the appeals in this Court in the habeas corpus cases, appeals in those criminal cases. Not only are these different cases, but they are different in kind. They are civil cases to enforce the civil right of personal liberty. The others were criminal cases to inquire into alleged criminal acts. As the Supreme Court of the United States said, per Mr. Chief Justice Waite, in Ex parte Tom Tong, 108 U. S. 556, “The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of
The provision of Section 84 now invoked applies to only (1) an appeal or (2) a new trial in (3) the same case in which the judge has given a previous judgment. The appeal before this court in each habeas corpus case is one remove farther from the criminal case in which Judge Perry sat than the original
The maxim that no man shall be a judge in his own cause, of course has no application to this case. The question is not whether Judge Perry was right or Judge Gear wrong, but whether the petitioners are unlawfully held. Judge Perry is not a party in these cases. They aremot.ahis own causes.” They are the causes of the petitioners. It has been a most common occurrence in both England and the United States for judges to sit on appeals not only in cases in which questions were involved which have previously been passed on by themselves in other cases but also in the very cases in which they have previously actually sat and rendered judgments. It is the statute, not the maxim, that now prevents a judge from sitting on an appeal or new trial in the same ease in which he has given a previous judgment, but the statute doesi not go so far as to prevent him from sitting on an appeal or new trial in a different case though he may have previously sat in a case involving the same question of law. If the statute did go so far, the dissent
The appeals are sustained, -the orders appealed from reversed, and the prisoners remanded to custody.
Dissenting Opinion
DISSENTING OPINION OF
I respectfully dissent. My reasons for so doing are given in the dissenting opinion filed in the case of Ah Oi (ante p. 534) argued and submitted with the above case.
