In re Magoon

18 Haw. 670

• Court: Hawaii Supreme Court
• Decided: December 6, 1907
• Status: Published

Opinion

OPINION.

In the Oriemon case, 13 Haw. 102, it was claimed that the mittimus was illegal by reason of defectve form and ambiguity. The court does not appear to have passed upon the question but said in substance that the function of the mittimus had been performed when the prisoner was placed in custody, and that a proper mittimus could, if needed, be supplied at any time.

That view, if applicable to this case, might obviate any difficulty, owing to the fact that the mittimus does not state the circumstances of the contempt, if it were not that the statute in a later enactment peremptorily requires the mittimus to contain a recital of the circumstances of the offense. Therefore the Oriemon case does not control. My impression is that in this case the judgment may be regarded as.setting forth a contempt.

In regard to entering judgment after the mittimus was issued. T think we all understand that would frequently be the case. The magistrate might not wish to take the time to write it out then and there. He might do it later on after he had disposed of other matters pending and T see no impropriety in his doing so but T cannot avoid the requirement of the statute that the mittimus contain the statement of the offense held to be contempt, and therefore it is my judgment that the petitioner be discharged from custody.

A. 8. Humphreys and J. A. Magoon for petitioner. O. B. Hememoay, Attorney General, for respondent. O. W. Ashford for appellant. IF. A. Kinney and fí. K. Dierby fov appellee.