25 Haw. 747 | Haw. | 1921
OPINION OP THE COURT BY
The defendant Charles A. Wills, as a police officer of the City and County of Honolulu, was indicted for the crime of extortion under section 3944 R. L. 1915. The defendant James K. Kahue, as a special police officer, was indicted for the same crime under the same section.
The indictment against the defendant Wills, omitting the formal parts, is as follows: “that Charles A. Wills, at the City and County of Honolulu, Territory of Hawaii, and within the jurisdiction of this Honorable Court, on the third day of September, 1920, he, the said Charles A. Wills, being then and there a public officer, to wit, a duly commissioned and acting police officer of the District of Ewa, City and County of Honolulu, Territory of Hawaii, by color of his office, unlawfully, wilfully, corruptly, feloniously and extorsively and with intent in him, the said Charles A. Wills, to extort, obtain and procure of and from one Kajun Jaha certain sums of money for the sole benefit and profit of him, the said Charles A. Wills, did menace and threaten the said Kajun Jaha that unless he, the said Kajnn Jaha would pay to him, the said Charles A. Wills, certain sums of money, he, the said Charles A. Wills, wonld arrest and cause to be confined in a jail of the City and County of Honolulu, Territory of Hawaii, said Kajun Jaha upon an alleged charge of unlawfully having in his possession certain intoxicating liquor known as okolehao. And that by means of the menace and threat made as aforesaid, the said Charles A. Wills, by color of his office, unlawfully, wilfully, corruptly, feloniously and extorsively did extort and obtain from the said Kajun Jaha certain moneys of the aggregate amount and value of
The section of the statute under which the indictments are drawn is as follows:
“Sec. 3944. By public officer. Whoever, being a public officer of any description, civil, judicial, military, or other, by color of his office, wilfully and corruptly extorts from another for his own benefit and profit, any thing of value, knowing that he has not any legal authority or right to exact the same, is guilty, of extortion in the second degree.”
The defendants demurred to the. indictments and by their demurrers raised the questions of whether a policeman and a special policeman are public officers within the meaning of said section 3944, and whether the indict-’ ments set forth facts sufficient to constitute an offense under the laws of the Territory of Hawaii and particularly under said section 3944. The circuit judge being in doubt as to the merits of the questions raised by the demurrers has reserved said questions to this court, the questions in the Wills case being as follows:
“1st. Is a duly commissioned and acting police officer, a public officer within the provisions of Section 3944 of the Revised Laws of Hawaii, 1915?
“2nd. Does the indictment set forth facts sufficient to constitute an offense under the laws of the Territory of Hawaii?”
and the questions in the Kahue case as follows:
*750 “1st. Is a duly commissioned and acting special police officer without pay a public officer within the provisions of Section 3944 of the Revised Laws of Hawaii, 1915?
“2nd. Is a duly commissioned and acting special police officer without pay from any governmental authority, but paid by a private person or concern for services in guarding private property of such person or concern, and appointed by the sheriff of the City and County of Honolulu at the request of such person or concern, a public officer within the provisions of Section 3944 of the Revised Laws of Hawaii, 1915, while not in the act of performing such service but while acting under color of said commission ?
“3rd. Does the appointment by the sheriff of the City and County of Honolulu of a special police officer without pay require the approval of the Civil Service Commission under Chapter 117, Revised Laws of Hawaii, 1915, and if so, is an appointee without such approval a de facto officer, and as such a public officer within the provisions of Section 3944 of the Revised Laws of Hawaii, 1915?
“4th. Does the indictment set forth facts sufficient to constitute an offense under the laws of the Territory of Hawaii?”
Both defendants are represented by the same counsel and in compliance with a stipulation entered into between counsel for the defendants and the deputy city and county attorney and approved by the court the two cases have been briefed and argued together and will be disposed of in one opinion.
First as to whether defendant Wills, a duly commissioned and acting police officer, is a public officer within the meaning of the section above quoted. We think the solution of this question depends upon whether there has been created by law a public office in which he has been selected to serve as required by law. A public officer is one who holds a public office. There is no contention
The case from which the above quotation was taken was a civil suit by the United States against the principal and his sureties upon a bond given by an agent of fortifications and therefore does not meet defendant’s contention that this being a criminal prosecution the statute should be strictly construed. However, in United States v. Hartwell, 73 U. S. 385, the supreme court in construing a criminal statute held that a clerk in the office of the assistant treasurer of the United States at Boston, appointed by him with the approbation of the secretary of the treasury, having the care and subject to the duty to keep safely the public moneys of the United States, was a public officer within the meaning of a statute which declared that “All public officers of whatever grade be and they are hereby required to keep safely without loaning, using, depositing in banks or exchanging for other funds than as allowed by this act, all public moneys collected by them,” etc., and making a violation thereof a felony. In the discussion as to what constitutes an office the court said (p. 393): “An office is a public station, or employment, conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument and duties. The employment of the defendant was in the
As we have said, there is no contention that the defendant Wills did not receive his appointment in the manner prescribed by law. Nor is there any contention that the position which he holds is not created by general law. The duties which a policeman is required to perform are of a public nature such as conserving the public peace, etc., and his employment embraces the idea of tenure, duration, emoluments and, as we have said, duties of a public nature. We think that we are not violating any of the rules laid down by the eminent authority cited in holding that a duly commissioned and acting-police officer of the City and County of Honolulu is a public officer within the meaning of the statute involved. To hold otherwise we think would be to narrow the words' used to the exclusion of what the legislature intended to embrace. In common parlance a policeman is referred to as an officer and to hold that the term “public officer,” as used by the legislature in the statute in question, does not include a duly commissioned and acting policeman, who is placed in the most favorable position of all public officers to extort money from individuals by color of his office, would render the legislation absurd.
In this jurisdiction a policeman is neither required to give a bond nor take an oath of office and some argument is based on these facts. We think, however, that the oath
The question of whether the defendant Kahue is a public officer presents a different question. The indict-, ment alleges that he is “a duly commissioned and acting special police officer without pay,” etc. But it is stipulated by the parties that he was not appointed from the list of eligibles furnished by the civil service commission but was appointed and commissioned by the sheriff of the City and County of Honolulu, his commission being in the form of the commission of regular policemen with an annotation to the effect that he is commissioned “as special police Avithout pay;” that he is employed by Y. Ahin as a Avatchman to guard a cane field and paid for. such services by said Y. Ahin; that without the consent or instigation of Y. Ahin and not as any part of said service to Y. Ahin the defendant is alleged to have done the acts charged in the indictment.
Counsel for defendants make the same contentions as to the status of Kahue as are made as to the status of Wills and in addition contend that the sheriff of the City and County of Honolulu has no authority under the law to appoint special policemen whether selected from the list of eligibles furnished by the civil service commission or not and that if it should be held that he has such authority he is confined to such list of eligibles. Since no one except the sheriff is claimed to have the authority to appoint special policemen Avithout pay the effect of saying that he is entirely Avithout authority to appoint such a policeman is equivalent to saying that no such office exists and that therefore there can be no such officer. We shall therefore examine the statutes to see whether the sheriff has such authority.
Counsel for defendants have called our attention to section 1751 R. L. 1915 as amended by Act 62 S. L. 1919, which reads in part as follows:
“The sheriff shall have power to appoint under civil service regulations, as provided by law, such police officers, and at such salaries as may be allowed from time to time by the board of supervisors; provided that no civil service regulation shall be construed to prevent the board from abolishing any position of police officer theretofore allowed and revoking the salary or compensation therefor, and in such case the person dismissed if in good standing may, by written request to the sheriff within thirty days, be placed at the top of any list of eligibles for civil service appointment. And the sheriff further shall have power to appoint and remove at pleasure any deputy sheriffs, clerks, stenographers or other assistants, not under civil service, and at such salaries or compensation as may be allowed by the board of supervisors.”
This section, like section 1745, is a part of the municipaLact of the City and County of Honolulu. As originally enacted it did not deal with the authority of the sheriff to make appointments but dealt with the authority and duties of deputy sheriffs within their respective districts. Ry the amendment of 1919 the portion above quoted was added. It will be seen that this section noAV deals quite generally with the authority of the sheriff to make appointments but it does not mention special policemen nor does it expressly repeal or amend the section (1745) under AArhich the sheriff is authorized to appoint special policemen AAi.th.out pay. Does it repeal or amend said section by implication? When two statutes coArer, in whoie or in part, the same subject-matter, and are not
But the civil service act provides that “No person shall hold or be appointed to any position either in the police department or in the fire department of the City and County of Honolulu without the approval'of the commission in accordance with its rules and regulations” (Sec. 1872 R. L. 1915). In Moir v. Knell, supra, the court came to the conclusion that a county sheriff is authorized to appoint police officers without the approval of the attorney general notwithstanding the fact that the high sheriff was authorized to appoint such officers (prior to the county act) only with such approval and notwithstanding the fact that this authority was transferred to county sheriffs in general language giving them the same
We conclude therefore that the statutes discussed neither repeal nor amend that portion of the statute conferring authority upon the sheriff of the City and County of Honolulu to appoint special police officers without pay and that under the indictment and the additional facts stipulated the defendant Kahue is a public officer Avithin the meaning of the section of the statute under Avhich the indictment is drawn.
Some argument is based upon the fact that the defendant Kahue Avas appointed at the request of a private person and is paid by such person for sexwices in guarding private property. We cannot concede that this prevents him from being a public officer, entitled to all the ixxxxxxunities and sxxbject to all of the penalties of a regular police officer while acting under color of his office. Such officers, in the opinion of the courts, act sometimes as servants of the persons employing them and sometimes as officers of the government. (McKain v. Baltimore & O. R. Co., 64
We now come to a consideration of the indictments. Since the two indictments with the exception of names, dates and the amount of money extorted are the same we will use the indictment in the Wills case for the purpose of this discussion. It is attacked on the ground that it does not allege that the defendant extorted and obtained from any one “for his own benefit and profit” anything of value and therefore fails to charge the offense in the words of the statute or their equivalent. The indictment alleges in effect that the menace and threat named therein was used by the defendant with the intent to procure the money for his sole benefit and profit, and that by means of the menace and threat made as aforesaid, etc., he did extort and obtain from *' * * certain moneys of the value of $100, but fails to allege that said moneys were actually obtained by the defendant for his own benefit and profit. It is the contention of counsel that notwithstand
If the phrase “by means of the menace and threat as aforesaid” does not refer to the intent with which said menace and threat was used, as already recited, we are unable to discover anything in the indictment to which it does refer. If such phrase does, as we think it must, refer to the intent with which the menace and threat was used by the defendant then the latter part of the indictment in the Wills case would read as follows: “And that by means of the menace and threat made with the intent in him, the said Charles A. Wills, to extort, obtain and procure of and from one Kajun Jaba certain sums of money for the sole benefit and profit of him, the said Charles A. Wills, the said Charles A. Wills by color of his office unlawfully, wilfully, corruptly, feloniously and extorsively did extort and obtain from the said Kajun Jaha
It follows from what we have said that both questions in the Wills case must be answered in the affirmative and that the first, second and fourth questions in the Kahue case should be answered in the affirmative. The first portion of the third question in the Kahue case should be answered in the negative. The second portion of said question need not be answered.