Balucan, Application of

• Decision Date: 26 May 1960
• Docket Number: No. 4188,4188
• Citation: 44 Haw. 271,353 P.2d 631
• Parties: Application of Felicia Ann BALUCAN for A Writ of Habeas Corpus.
• Court: Hawaii Supreme Court

Page 631

353 P.2d 631

44 Haw. 271

Application of Felicia Ann BALUCAN for A Writ of Habeas Corpus.

No. 4188.

Supreme Court of Hawai'i.

May 26, 1960.

Syllabus by the Court

1. An order setting forth the circumstances of a direct contempt committed in open court by a witness under the age of eighteen during trial of a criminal case, is defective when entitled in the juvenile court since the court was not sitting as a juvenile court. There having been no compliance with R.L.H.1955, § 269-5, the contemnor will be discharged from custody.

2. The power of summary punishment for contempt of court, to compel obedience to an order of the court, the contempt having been committed in open court by a witness under the age of eighteen, is an inherent power of a constitutional court, and the juvenile court statute does not deprive the court of this inherent power.

3. A girl under sixteen years of age, the victim of the offense defined by R.L.H.1955, § 309-14, sexual intercourse with a female under sixteen, a felony, cannot be charged as a principal aiding in the commission of, or as an accessory to, the felony. Accordingly, a claim of privilege against self-incrimination cannot be supported on the basis of danger of prosecution for that felony.

4. A claim of the privilege against self-incrimination, made by a girl under sixteen years of age when asked whether she had had sexual intercourse with accused on trial for violation of R.L.H.1955, § 309-14, sexual intercourse with a female under sixteen (the witness being the female in question), judged in the setting of the particular case and under the rule that the constitutional protection does not extend to remote possibilities, is not supported on the basis of danger of prosecution for the felony of sodomy.

5. A claim of privilege against self-incrimination, made by a minor called as a witness, cannot be supported on the basis that there might be elicited information leading to juvenile court proceedings against the witness as a delinquent child.

6. A minor who, by reason of his age, cannot be prosecuted for a misdemeanor during the two-year period fixed by the statute of limitations, R.L.H.1955, § 254-1, if he remains in the state, does not stand to lose the benefit of the statute under the provision tolling the statute in the case of a person who 'absents himself from the State.' The bar of the statute of limitations being complete, this defeats the privilege against self-incrimination the same as an immunity statute.

H. William Burgess, Hilo (Allen W. Wooddell, Honolulu, with him on the briefs, Carlsmith, Carlsmith, Wichman & Case, Honolulu, of counsel), for petitioner.

Harold Y. Shintaku, Deputy Atty. Gen., and Yoshito Tanaka, County Atty., County of Hawaii, Hilo (Mamoru Shimokusu, Deputy County Atty., Hilo, with him on the briefs), for respondent.

Before TSUKIYAMA, C. J., and MARUMOTO, CASSIDY, WIRTZ and LEWIS, JJ.

LEWIS, Justice.

An amended petition for a writ of habeas corpus, or alternatively an order to show cause, having been filed in this court in behalf of a girl fifteen years of age, setting forth her imprisonment for alleged contempt of court and seeking her release from the Hawaii County Jail, the court on April 14, 1960, ordered the custodian of the jail, the Chief of Police of the County of Hawaii to show cause for the imprisonment. Upon a motion for allowance of bail showing that the Circuit Court of the Third Circuit denied the same, the court ordered her released on bail. This girl hereinafter is called the 'petitioner.'

The return to the order to show cause showed as follows:

On the morning of April 12, 1960, the case of State v. Thomas Clark Silva, Criminal No. 3245, Circuit Court of the Third Circuit, was called for trial jury waived. The accused, Silva, was on trial for a violation of R.L.H.1955, § 309-14, to wit, that in November, 1959, in Kainaliu, County of Hawaii, he did have sexual intercourse with petitioner, a female under the age of 16 years who was not his lawful wife.

Petitioner was called as a witness by the prosecution. Previously, in Juvenile No. 5525, Third Circuit, petitioner had been brought before the juvenile court on a petition alleging her to be a delinquent child by reason of having committed the offense of adultery, a violation of R.L.H.1955, § 309-8, to wit, that on two occasions in November, 1959, once at Kainaliu and the other at Keauhou Bay, County of Hawaii, she had sexual intercourse with Silva, the same man as the accused in Criminal No. 3245, described in the petition as a married adult male.

The petition in Juvenile No. 5525 was heard on January 29, 1960, and again on February 1, 1960, following which, on February 1, 1960, the petition was dismissed. In this Juvenile No. 5525, petitioner was represented by the same attorney who appeared for Silva in Criminal No. 3245. This same attorney appears for her here, and as will be noted counselled her in connection with her appearance as a witness in Criminal No. 3245. The juvenile court proceeding was dismissed after the court 'held that she could not be compelled to testify on the grounds of self-incrimination,' as stated in the amended order of April 13, 1960, annexed to the return.

At the opening of the trial in Criminal No. 3245 defense counsel renewed a request, which had been made after the divorce of Silva, for permission under R.L.H.1955, § 323-1, for petitioner to marry Silva. At that time defense counsel announced that he also represented petitioner, stating that he had been retained by her parents and by her. The court again denied the request, then questioned counsel as to the nature of his representation of petitioner. However, the dual capacity in which counsel was and still is retained is not before us at this time. We use the term 'counsel' to denote the attorney who was acting in this dual role.

Petitioner testified in Criminal No. 3245 that she had known the accused a year and three months. When she was asked whether she had had sexual intercourse with him in November, 1959, the court denied counsel's request that the witness be instructed she could be tried for any offense about which she might testify and did not have to answer, the court ruling 'that the acquittal of Felicia Ann Balucan in Juvenile Proceedings, No. 5525, constitutes a complete bar against any further proceedings against her for the same offense specified in the petition of said Juvenile Proceedings, either in the Juvenile or Circuit Court.'

The question then being put again, petitioner stated: 'I refuse to answer.' Questioned by the court as to her reasons for refusing she did not answer, but counsel interposed the statement: 'If your Honor please, I have advised Miss Balucan to refuse to answer on the grounds of self-incrimination.' The witness still refusing to answer the following ensued:

'The Court: The Court finds you are in contempt of court and you will be placed in the detention home until such time that you want to answer the question.'

Counsel objected that: 'If you are going to try her for contempt of court, then the proceedings should be properly taken and the charge made.' Court then recessed.

At 3:15 p. m. on the same day, court was reconvened and petitioner again placed on the stand, whereupon counsel requested an opportunity to discuss the matter with her. This request was granted and the court recessed for that purpose. When the trial resumed petitioner denied that she had told anyone she wanted to come back to court and testify. Later she testified that she had told the probation supervisor she might or might not testify, and now had made up her mind not to testify.

The court then read to petitioner the order which had been filed at 3:20 p. m. on that day, April 12, 1960, hereafter reviewed. Asked by the court whether she understood 'that you are not subject to prosecution for any acts that may have been committed between you and Mr. Silva on November, 1959, and that you will not be prosecuted for any such acts,' the petitioner stated she understood, that she had been advised by her attorney not to testify, whereupon counsel stated that he did so advise her on grounds of self-incrimination.

The return shows petitioner was received at the jail on April 12, 1960, by virtue of a letter of that date from the probation supervisor of the juvenile court, confirmed the following morning by another letter of the probation supervisor transmitting a certified copy of the order filed at 3:20 p. m., April 12, 1960. The return further shows that petitioner later was held under the amended order of April 13, 1960.

Both the order of April 12, 1960, and the amended order of April 13, 1960 were entitled 'In the Juvenile Court of the Third Circuit' under Juvenile No. 5525, designated 'In the Matter of Felicia Ann Balucan, a Delinquent Child.' The number was the same as that of the delinquency proceeding which has been dismissed on February 1, 1960.

The April 12 order found the minor in contempt, declared her a delinquent ward of the court, placed her in the custody of the probation department for the period of her minority, ordered her confined in the women's ward provided there was no adult confined in the ward with the minor, and specified that said confinment be 'not less than fifteen (15) days at which time she shall be returned to the Juvenile Court, or sooner returned upon her willingness to purge herself of the Contempt.' The amended order of April 13 additionally set out the circumstances of the contempt in Criminal No. 3245, outlined above.

The judges of the third circuit court are vested with juvenile court jurisdiction by R.L.H.1955, § 333-2. However, the judge presiding in Criminal No. 3245 did not recess the case and reconvene as the juvenile court when passing upon the petitioner's contempt. No petition setting forth the grounds of the alleged delinquency was filed. The parents were not notified. See R.L.H.1955, § 333-5.

Since the court...