Territory Hawai`i v. Tsutsui, 2805.

• Decision Date: 04 March 1952
• Docket Number: NO. 2805.,2805.
• Citation: 39 Haw. 287
• Parties: TERRITORY OF HAWAII v. GEORGE TSUTSUI.
• Court: Hawaii Supreme Court

39 Haw. 287

TERRITORY OF HAWAII

v.GEORGE TSUTSUI.

NO. 2805.

Supreme Court of the Territory of Hawai‘i.

Argued February 29, 1952.

Decided March 4, 1952.

OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. J. E. PARKS, JUDGE.

Syllabus by the Court

The constitutionality of a statute must be raised in the court below at the first opportunity and cannot be raised for the first time in the supreme court.

Section 11343, Revised Laws of Hawaii 1945, prohibiting betting on games in which money or anything of value is lost or won makes no distinction whether the game is one of chance or of skill.G. Nakamura ( Y. Fukushima on opening brief; Fukushima & Nakamura on reply) for plaintiff in error.

T. Kitaoka, Assistant Public Prosecutor ( A. R. Hawkins, Public Prosecutor with him on the brief), for defendant in error.

TOWSE, C. J., LE BARON AND STAINBACK, JJ.

OPINION OF THE COURT BY STAINBACK, J.

Defendant, plaintiff in error, was convicted by a jury in the circuit court of the first judicial circuit for participating in and being present at a gambling game in violation of section 11343, Revised Laws of Hawaii 1945; he was sentenced by the court to one year in prison and placed on probation for a period of five years, execution of sentence to be suspended except as to thirty days thereof upon certain conditions, one of which was repayment of moneys obtained from the complaining witness.

Counsel for plaintiff in error raised in this court for the first time the constitutionality of section 11343, Revised Laws of Hawaii 1945, contending it violated the Constitution of the United States which guarantees freedom of assembly and association, the Fourth Amendment as it infringes the right of people to be secure in their persons and in their houses against unreasonable searches and seizures, and also the Fifth Amendment that no person shall be deprived of life, liberty or property without due process of law.

Inasmuch as these questions were not raised below (and were not argued in this court) the court deems it unnecessary to pass upon the constitutionality of the law. (Territory v. Kelly, 38 Haw. 433; Wong Tai v. United States, 273 U. S. 77.)

Two additional contentions were made: first, that to constitute gambling, the result of the event or game must be dependent more upon chance or lot than skill and that, second, to constitute gambling as by playing at cards, money or something of value must be won or lost as a result of the game, and that the evidence herein does not prove that money or anything of value was lost or won.

As to the first question counsel is obviously confusing section 11340, dealing with lottery, with section 11343, which prohibits gambling on card games, etc. Section 11343 prohibits betting on games in which money or anything of value is lost or won, and makes no distinction whether it is a game of skill or chance. Territory v. Apoliona, 20 Haw. 109, at 111, points out that to come within such statute a gambling need not be a banking or percentage game and, we may add, need not be dependent upon chance rather than skill. Betting on a game is prohibited and penalized. Counsel's argument that this was a crooked game in which nothing was left to chance cannot be a defense to a charge of gambling; in fact, it is rather an aggravation to point out that nothing was left to chance but one of the...