Lead Opinion
OPINION OP THE COURT BY
October 14, 1914, tbe grand jury of tbe first judicial circuit returned an indictment against tbe defendants John T. Scully, Willmot K. Cbilton and Jobn H. Eiscber containing three counts, tbe facts set forth in each count alleged to have been committed on tbe 29th day of Juné, 1914. Tbe first count accused tbe said defendants of having “unlawfully, maliciously and fraudulently combined and mutually undertook and eon
The second count, after setting out the facts aforesaid, charged the said defendants with “unlawfully, maliciously and mutually undertaking and concerting together, suppressed the legal evidence of said John H. Eischer in the civil proceeding aforesaid, and wrongfully and unlawfully prevented the said John H. Fischer from appearing before the said Board of License Commissioners to give legal evidence in the civil proceeding then pending as aforesaid, and did then and there and thereby commit the crime of conspiracy in the first degree, contrary to the form of "the statute in such case made and provided.”
The third count, after setting forth the facts and circum
To the said indictment the defendant Scully appeared and ■filed his written motion to quash the said indictment upon the ground that “the grand jury which found said indictment was mot drawn from a certified list of names which had been selected in the manner in which it is provided in section 3 of Act 74 of the Laws of the Territory of Hawaii for the Session of 1905, amending section 1777 of the Bevised Laws of Hawaii;” that the jury commissioners, in selecting the list of names from which •said grand jury were drawn, did so without regard to the number of registered voters last registered in each of the several precincts of the circuit, selecting the names upon said list from the several precincts in the sáid circuit as follows: from precinct 1 of the fourth district, having a registered vote of 393, eleven names; from precinct 2 of the said district, having a registered vote of 381, seven names; from precinct 3 of said district, having a registered vote of 342, fourteen names; from precinct 4 of said district, having a registered vote of 364, fifteen names; from precinct 5 of said district, having a registered vote of 341, seven names; from precinct 6 of said district, having a registered vote of 450, one name; from precinct 7 of said ■district, having a registered vote of 320, two names; from pre
In support of said motion to quash the defendants filed a. statement of said motion verified by defendant Scully, the affidavit of A. S. Humphreys, the affidavit of D. Kalauokalani, Jr., clerk of the city and county of Honolulu, verifying the statement showing the registered voters in each of the precincts in the-first judicial circuit and the number of grand jurors drawn from each, where any were drawn, and a duly certified copy of' the list of grand jurors made by the jury commissioners of the-first judicial circuit on the 1st day of December, 1913, for use-during the year 1914 in the said circuit.
To the said indictment and to each count thereof the defendant Chilton filed his certain demurrer upon a number of grounds-; specified, but which may be summarized as follows: 1. The-
To the motion to quash the said indictment the city and county attorney entered a demurrer ore terms in open court, and the first judge of the first circuit reserved to this court the question “shall said demurrer be sustained.” Said judge also reserved to this court, touching said demurrer to the indictment, the question “whether said demurrer should be sustained for any reason or reasons therein set forth, or whether it should be overruled.”
We will first consider the demurrer to the said indictment. The defendant contends that reading sections 4039 and 4041 B. L. 1915 together, that it is apparent that section 4039 was intended to relate to suits and proceedings in a court, while section 4041 was intended to relate to all obstructions of public
Section 4076 R. L. 1915, which has been in force for many years, provides as follows: “A conspiracy is a malicious or fraudulent combination or mutual undertaking or concerting together of two or more, to commit any offense or instigate any one thereto, or charge any one therewith.” And said section, in enumerating specific acts that under the statute constitute conspiracy, mentions the following: “A confederacy to commit
The principal question involved in the decision of the reserved question, touching the demurrer to the indictment, is, whether under the statute (Sec. 4039 R. L. 1915) an application before the board of license commissioners for the renewal of a liquor license is a civil proceeding. If this question be answered in the affirmative, it necessarily follows that the acts charged in the indictment are a violation of the statute, in that a witness was promised and given a reward to evade giving his testimony in a civil proceeding, thereby obstructing the course of public justice.
We are nof unmindful of the rule recognized in this jurisdiction, as in others, that penal statutes are to be liberally construed in favor of the accused; that statutes creating and defining crimes cannot be extended by intendment; and, no act can be punished as a crime unless clearly within the terms of a statute forbidding it and prescribing a punishment therefor. Territory v. Ah Goon, ante 31, 33. On the other hand, the object, purpose and intent of a penal statute should not be defeated by technicalities, or by refusing to give to the language its obvious and usual signification. Legally, the acts charged in the indictment are either innocent or criminal. The suppression of evidence for the purpose of working a fraud upon the public, or upon the people of a certain vicinity, as well as upon an administrative board charged with and exercising quasi judicial powers, tends to pervert the course of public justice and palpably comes within the spirit of the statute under consideration. Does it come within the letter of the statute ? This court has held that a board of license commissioners is not a court. Territory v. Miguel, 18 Haw. 402. Nevertheless, the board is charged with the duty of hearing applications; with the power to grant or refuse a license to sell intoxicating liquors, or a renewal of such license; is authorized to hear remonstrances to such applications, and is prohibited from granting a license to
We hold that the legislature used the word “proceeding” in its broad sense and not in a limited or technical sense. The hearing of an application for a liquor license by the board of license commissioners is a proceeding of a quasi judicial nature in which the public is interested; in which the applicant for a license is interested; in which any person authorized by law to file a protest is interested. The hearing is a public hearing;
We hold under the statute in question that the acts set forth in the indictment are sufficient to state an offense in that the acts charged show that the defendants, concerting together, mutually undertook to promise, and to give a gratuity or reward to a witness to evade giving his testimony in a civil proceeding.
As to the motion to quash the indictment we find no showing in the record of any claim that the grand jurors, or any of them, who found and returned the indictment, were ’ disqualified or incompetent to act as such jurors. The motion is based upon an obvious irregularity in disregarding the plain provisions of the statute (Sec. 2412 R. L. 1915) in failing to make the list from which the grand jurors are to be drawn as directed by the statute, and did not “proceed to select and list from the citizens, voters and residents of the several precincts in the circuit, as near as may be according to and in proportion with the respective number of registered voters last registered in each of such
We answer the reserved questions as follows: The demurrer to the indictment should be overruled. The demurrer to the motion to quash should be sustained, and the motion to quash overruled.
Concurrence in Part
CONCURRING IN PART AND DISSENTING IN PART.
I concur in the conclusion arrived at by the majority that the motion to quash should be overruled, but I respectfully dissent from the views expressed in the foregoing opinion touching the disposition of the demurrer to the indictment and the conclusion arrived at in that behalf. I am unable to agree that an application for the renewal of a liquor license before the board of license commissioners is a civil “proceeding” within the meaning of section 4039 of the Revised Laws of 1915, which section the defendants are charged with having violated and conspired to violate. To constitute an offense under the section referred to which is set out in full in the foregoing opinion, it is necessary that there be a wilful intent to “prevent or obstruct the course of justice” in a “suit or proceeding, criminal or civil.”
That the application for the issuance of a liquor license before the board of license commissioners is not a suit is obvious, the word “suit” being defined by Anderson as follows: “Any proceeding in a court in which a plaintiff pursues his remedy to recover a right or claim;” and by Bouvier: “Suit is a generic term of comprehensive signification and applies to any proceeding in a court of justice in which the plaintiff pursues in such court the remedy which the law affords him for the redress of an injury and the recovery of a right.” That the application for the renewal of a license is not a criminal proceeding is recognized by the opinion of the court.
The question as to whether or not an application before a board of license commissioners is a civil proceeding within the meaning of our statute depends upon the meaning of the word “proceeding.” In the foregoing opinion a number of cases are cited (none of which, it may be observed, involve the construction of a penal statute) from which the majority deduce that the word “proceeding,” as used in our statute, is broad enough to cover the case made by the indictment. In Hopewell v. State,
I am clearly of the opinion that the word “proceeding,” as used in our statute, was intended by the legislature to have reference to something done or to be done in a court of justice. (That a board of liquor commissioners is not a court was decided by this court in Territory v. Miguel, 18 Haw. 402, cited in the foregoing opinion.) This view is strengthened by a consideration of the wording of the statute itself which makes the intent (to prevent or obstruct the course of justice) an essential element of the offense created. In 29 Cyc. 1326, it is said: “The phrase ‘obstructing justice’ means impeding or obstructing those who seek justice in a court or those who have duties or powers
From these definitions it will be seen that the word “justice” implies a right which may be enforced by the party claiming it. Certainly under the laws of this Territory there is no right to the issuance or renewal of a liquor license. At best such issuance is a privilege which cannot be legally demanded or enforced. Conceding that the word “proceeding,” as used in the statute, is broader than the term “suit,” which immediately precedes it, applying the rule of ejusdem generis, I think it is clear that the latter word must be limited in its meaning by the former and construed to mean only such proceedings as are pending in a court of justice. (17 Am. & Eng. Enc. L. (2 ed.) 6; 26 Am. & Eng. Enc. L. (2 ed.) 609.) The words “course of justice” and “due administration of justice,” and the like, are, in their ordinary and every-day use, intended and understood to apply to proceedings in courts of justice. This is shown by the very definition of the word “conrt,” which is given by Anderson as “the place where justice is administered,” and by Bouvier as “a body in the government to which the administration of justice is delegated.” In the case of Todd v. United States, 158 U. S. 278, in which it was held that a preliminary examination before a commissioner of a circuit court is not a case pending in any court of the United States within the meaning
“It is axiomatic that statutes creating and defining crimes cannot be extended by intendment, and that no act, however wrongful, can be punished under such a statute unless clearly within its terms. ‘There can be no constructive offenses, and before a man can be punished, his case must be plainly and unmistakably within the statute.’ United States v. Lacher, 134 U. S. 624; Endlich on the Interpretation of Statutes, see. 329, 2d. ed.; Pomeroy’s Sedgwick on Statutory and Constitutional Construction, 280.” See also Territory v. Ah Goon, 22 Haw. 31, 32.
Eor the reasons herein stated I am of the opinion that the indictment charges no offense against the laws of the Territory and that the demurrer thereto, and to every count thereof, should be sustained.