17 Haw. 428 | Haw. | 1906
Lead Opinion
OPINION OF THE COURT BY
Tbe appellee, who was a petitioner for a writ of habeas corpus, claims that the chief justice is disqualified because he
It is obvious that if the alleged disqualification is based upon a principle of law — that bias per se disqualifies — it is immaterial from what circumstances it arises or what construction has been placed upon constitutional provisions.
The petitioner cites the Mankichi case, 190 U. S. 197, and Carter v. Gear, 197 U. S. 348, as authority that “in interpreting a statute * * * the intention of the law making power will prevail, even against the letter of the statute.” As the Joint Resolution of Annexation contained no express provision for extending the Constitution of the Hnited States to Hawaii or declaring that no Hawaiian laws inconsistent with the Constitution should remain in force, the court declined to read into the resolution such unexpressed provision. In the other case
The substance of the contention is (1) that the Organic Act, in naming certain causes which disqualify a judge, does not name all of them; (2) that the requirement of the Organic Act that the supreme court shall consist of a chief justice and two associate justices, with the proviso that the place of an absent ■or disqualified justice may be filled as provided by law, namely, by a circuit judge, does not refer solely to disqualifications named in the act, but to such other causes of disqualification as the court may deem to be sufficient; (3) that the uniform decisions of this court that a judge is disqualified who has been of counsel in the case must be treated as if the disqualification were expressly declared in the Organic Act, and (4) that bias,* being generally a cause of disqualification by constitutional or statutory provisions in. the several states, can, in the absence of such provisions in the Organic Act or constitutions of Hawaii, be regarded by this court as a sufficient disqualification. We see no sufficient reason to sustain the contention.
To hold that bias is a cause of disqualification, under certain ■circumstances, would require the same ruling under all circumstances and whether the bias would be likely to influence the judgment or not. This would be judicial legislation. The fact that bias, existing in various specified relations, or generally, has elsewhere been made the subject of legislation, indicates that legislation was considered to be necessary. We hold that the chief justice is not disqualified.
This case is an appeal by the Territory from an order of the circuit judge, in a habeas corpus proceeding, discharging the petitioner who was imprisoned in Honolulu jail under a
The petition further alleges that the petitioner was imprisoned by the high sheriff in “what is arbitrarily designated by law as Honolulu Jail, but which your petitioner avers is in fact a part of Oahu Jail, the latter being the Territorial penitentiary in which are confined all manner of felons convicted of infamous crimes under the laws of said Territory, including persons under sentence of death, that that portion of said penitentiary designated as Honolulu Jail is under the control of said High Sheriff, who is also the keeper or warden of said penitentiary, that the only means of ingress and egress to said Honolulu Jail so called, is through the gates, office and yard of said penitentiary, and that all persons confined in said Honolulu Jail so called, including your petitioner, are and must be imprisoned in said penitentiary before being confined in said Honolulu Jail so called, and are while so imprisoned in said penitentiary, photographed and registered upon the books • of said, penitentiary as inmates thereof, that is to say, there is entered upon the journal of said penitentiary, the sex, age, height, personal description of each prisoner thereafter confined in Honolulu Jail, so called, together with his last place of abode and place of nativity and the date of reception and discharge of each such prisoner, that all persons confined in said Honolulu Jail so called are numbered sequentially with felons
In argument the petitioner presented, as a further reason why his conviction was unlawful, that by the Organic Act, Sec. 83, “No person shall be convicted in any criminal case except by unanimous verdict of the jury.”
To this return the petitioner filed a “traverse affidavit.” A stipulation was filed that the evidence in this case should be the same as that taken and filed in the, case of Chun Hoon on habeas •corpus.
The material facts in the case appear to us to be as set forth in the return of the high sheriff. The Honolulu jail and Oahu prison are distinguished from each other by the statute which restricts the confinement of persons convicted of misdemeanors to the former, and the confinement of persons convicted of fel•ony to the latter. Acts 58 and 59, Law7s of 1905.
The circuit judge, in discharging the petitioner, ruled as follows: “In my opinion Section 3179 of the Revised Laws has not been amended or modified, but is in full force and -effect. That being true, and the punishment therein prescribed, which may be imposed, being infamous in its nature, it follows that the judgment of conviction by the District Magistrate was and is void: First, because the statute does not permit a sen
We will first consider whether the petitioner was liable to infamous punishment by reason of his confinement in Honolulu jail.
By statute, Sec. 2702, R. L., “Every offense, not a felony, is a misdemeanor,” a felony being defined “an offense that is punishable with death or with imprisonment for a longer period than one year.” Act 58, Laws of 1905, after declaring in Sec. 1, “That the building now known as the new prison erected in Iwilei, Honolulu, in the year 1904 on the Ewa side of the building known as the Oahu Prison, shall hereafter be known as the Honolulu Jail,” enacts, Sec. 2: “That no person convicted of a felony or suffering infamous punishment shall be sentenced to be confined or shall be confined within said Honolulu Jail so designated. No person confined therein shall be subject or compelled to perform labor during the term of his imprisonment.” By Act 59, “No person committed or held for trial or to secure his attendance as a witness or upon civil process or for contempt or upon conviction of a misdemeanor or otherwise by authority of law, except upon conviction of a felony, shall be imprisoned in Oahu Prison or subjected to any infamous punishment.”
Hence, it follows that if the statute does not authorize imprisonment at hard labor as a punishment for a misdemeanor, no person convicted of a misdemeanor can lawfully be subjected to any infamous punishment unless such punishment necessarily results from confinement in the Honolulu jail under the conditions existing there, with particular reference to the proximity of convicted felons.
In Mackin & Another v. U. S., 117 U. S. 348, the court held “That at the present day imprisonment in a State prison or penitentiary, with or without hard labor, is an infamous punishment. It is not only so considered in the general opinion of
The prisoner in this case was expressly exempt from the discipline and treatment imposed upon convicted felons. Acts 58 and 59 contemplate the complete separation of Oahu prison from Honolulu jail, and complete separation and treatment of convicted felons and persons convicted of misdemeanors. Undoubtedly imprisonment of a person convicted of a misdemeanor with convicted felons would create an impression that he belonged to the felon class whether treated as they were or not, since compulsory association of itself degrades, but we think that under the statutes which are applicable to this case, and under the conditions shown to exist, the petitioner is not undergoing infamous punishment and is not liable to be subjected to it if the statute has been amended so as to dispense with the-penalty of hard labor when imprisonment is imposed.
What then is the effect of Act 59 ? It is contended by the petitioner that it prohibits the high sheriff from inflicting the
It is true that such a sentence is indivisible into two separate sentences of imprisonment and of hard labor. It is equally true that the statute can be amended by repealing that portion of it which includes hard labor. The only question is whether Act 59 does, to that extent only, repeal the portion of Sec. 3179 which authorizes imprisonment at hard labor. We do not doubt the meaning and effect of this act, but if this were uncertain “One of the most effectual ways of discovering th'e true meaning of the law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the legislature to enact it.” Sec. 12, E. L.
There was no reason for limiting the power of the sheriff to impose infamous punishment for he had no such power. There is no reason to suppose that the legislature meant to abolish all imprisonment in cases of misdemeanor, but there is every reason to suppose that they did not intend to leave the community at the mercy of the criminal or vicious class in all cases of misdemeanors in which the statute does not explicitly authorize imprisonment only. It would also be absiu’d to suppose that the legislature meant to prohibit the sheriff from carrying into effect sentences authorized by law. “When the words of a law are ambiguous, every construction which leads to an absurdity should be rejected.” Sec. 13, E. L.
On the other hand, it was generally understood that the laws authorizing sentences of imprisonment at hard labor for offenses intended to be prosecuted upon information must be amended.
Another rule which applies is that “Laws in pari materia, or upon the same subject matter, must be construed with refer
To hold that the act takes away power to sentence to imprisonment persons convicted of misdemeanors would make unnecessary the provisions that no person upon conviction of a misdemeanor shall be imprisoned in Oahu prison and that no person confined in Honolulu jail shall be subject to perform labor, or that no person convicted of a felony or suffering infamous punishment shall be sentenced to be confined in Honolulu jail.
The only meaning that can be given to Acts 58 and 59 is that persons sentenced for misdemeanors shall not be confined in Oahu prison or subjected by sentence of court to hard labor and that no person convicted of felony shall be confined in Honolulu jail. It is immaterial whether the law says that a penalty for a misdemeanor shall be imprisonment or that wherever imprisonment at hard labor was a penalty hard labor shall no longer be imposed as part of the penalty. “Laws may be repealed either entirely or partially by other laws.” Sec. 19, R. L. .
The act cannot be disregarded. It must be given effect and there.is no other which it can have than to limit the power of a ;iudge to imposing a sentence of imprisonment.. Act 59 and Sec. 3119 can stand together in no other way.
“The repeal of a law is either express or implied; it is express when it is literally declared by a subsequent law; it is implied when the new law contains provisions contrary to, or irreconcilable with, those of the former law.” Sec. 21, R. L.
This is not an instance of applying the rule that implied repeals of laws are not considered favorably or that doubtful criminal statutes shall be construed in favor of the liberty of the person. It is hardly a case which requires more than to declare the law.
Although we hold that in this case an indictment was not required by the fifth amendment it remains to consider whether the offense is such as to require a iurv trial under Art. 3 of the Constitution, or the sixth amendment, or the provision cited
“Where the words of a law are dubious, their meaning maybe sought by examining the context, with which the ambiguous-words, phrases and sentences may be compared, in order to. ascertain their true meaning.” Sec. 10, R. L.
It is clear from the context that the act does not require that no person shall be tried for any criminal offense except .by a jury, but that in all criminal trials by a jury an unanimous verdict shall be necessary for conviction.
As to constitutional guaranties of a jury trial of all crimes and of the right to a speedy and public trial by an impartial jury in all criminal prosecutions, they do not refer to petty offenses or violations of ordinary municipal ordinances or ta such offenses as at common law are summarily tried by a justice of the peace. Callan v. Wilson, 127 U. S. 540.
Under similar provisions of state constitutions the summary-jurisdiction of magistrates is sustained “in the trial of violations of the usual municipal police regulations, enacted to preserve the peace, good order, health, safety, convenience and comfort of the inhabitants of the local community, and has been expressly held to include infractions of ordinances forbid
The expense and delays of grand jury investigations of such cases and of jury trials, with the failure and miscarriage of justice frequently resulting would be unreasonable and, as shown by the case above cited and the cases which it cites with -approval, neither common justice nor common sense, as exemplified in the U. S. Constitution, requires such results.
As said by Mr. Justice Holmes in Kepn&r v. U. 8., 195 H. 'S. 134, “At the present time in this country there is more dan-ger that criminals will escape justice than that they will be ■subjected to tyranny.”
The offense of gambling, whether prohibited by municipal -ordinances or territorial statute, is not a crime which from its nature requires the publicity of a jury trial but when it may be punished, as in the present case, by imprisonment for a period as long as one .year, the offense becomes sufficiently grave by reason of the penalty to require a jury trial, if demanded by the defendant. In Rasmussen v. U. S., 197 U. S. 516, the plaintiff in error had been indicted for violating Sec. 127 of the Alaska Code prohibiting the keeping of a disreputable house, the penalty for which was a fine not less than $100 nor more than $500 or imprisonment not less than three months nor more than one •year. The Alaska Code, adopted by Congress, provided that in trials for misdemeanors six persons should constitute a legal jury. It was held that this provision of the act of Congress
The decision is conclusive in the present case in requiring us to hold that under the sixth amendment the petitioner was entitled to “enjoy the right to a speedy and public trial by an impartial jury.”
Schick v. U. S., 195 U. S. 65, a case of a statutory offense involving a penalty of $50, held: “When there is no constitutional or statutory mandate and no public policy prohibiting, an accused may waive any privilege which he is given the right to enjoy,” and that a jury could be waived in that case. In Capital Traction Co. v. Hof, 174 U. S. 1, it was held that the right of a jury trial in common law suits secured by the seventh amendment was not infringed by an act of Congress giving jurisdiction to justices of the peace of the District of Columbia for the trial of civil causes to $300, with a right of appeal to a jury trial in a court of record on giving security to pay the judgment of the appellate court. The present case comes within the provisions of Sec. 1664, R. L., giving to district magistrates certain criminal jurisdiction, with the proviso that if the accused in any such case “shall have the right to a trial by jury in the first instance, the district magistrate, upon demand by the accused for such trial by jury, shall not exercise jurisdiction over such case, but shall examine and discharge or commit for trial the accused as provided by law, but if in any such case the accused shall not demand a trial by jury in the first instance, the distinct magistrate may exercise jurisdiction over the same subject to the right of appeal as provided by law.” The petitioner, not having demanded the trial by jury to which he was entitled, submitted his case to the jurisdiction of the magistrate, thereby waiving a jury. Phillips v. Preston, 5 How. 290; Kearney v. Case, 12 Wall. 284; Perego v. Dodge, 163 U. S. 166. In Schick v. U. S., supra, Mr. Justice Harlan in his dissenting opinion maintained that a jury can be waived in no misdemeanors other than “petty or minor crimes which at common law can be tried without a jury,” adding: “An enumeration of all the crimes against the United States which
A defendant may wish to be tried by a magistrate in the first instance, thereby learning what evidence will be produced
The judgment of the circuit judge is reversed and the petitioner is remanded to custody.
Concurrence Opinion
CONCURRING OPINION OF
I concur in the foregoing decision but base my opinion on the question of disqualification in part upon different grounds.
After hearing counsel I feel if anything more strongly than when I dissented in the Notley case that having taken an active-part as counsel in a case is a disqualification under Hawaiian practice and precedents, but I do not see how that has any bearing on the present case.
Even if I had given a formal opinion as to the validity and effect of the statute, as well as expressed an approval of it, as an attorney to a client in some other case, I would not for that reason be disqualified in this case, with which or with either of the parties to which so far as this case or this statute is concerned I had never had anything to do. - But as matter of fact I have not sustained in respect of this statute in any case or-matter or with any person or body any relation of attorney or other analogous relation.
The question therefore is reduced to this, whether an expression of approval of a statute to some person disqualifies a judge. An expression of approval or an opinion on either the law or the facts of a case would not in itself disqualify even a juror from sitting in that very case, for it might appear that he could