Ex parte Apuna

• Decision Date: 01 November 1869
• Citation: 6 Haw. 732
• Parties: IN RE APUNA.
• Court: Hawaii Supreme Court

6 Haw. 732

IN RE APUNA.

Supreme Court of Kingdom of Hawai'i.

November 1, 1869

HABEAS CORPUS.

Syllabus by the Court

Rights of persons in this Kingdom, under Writs of Habeas Corpus, are as fully secured by Constitutional and Statutory provisions as if the enactments of English law in this respect were spread on our statute books: and in construing our law the Court must be guided by those enactments and the decisions of American and English Courts.

Apuna was sentenced by a Circuit Court to pay $300 fine, and costs for selling opium without a license: he was imprisoned at hard labor by the Marshal: Held, as the sentence and the mittimus failed to express that the defendant should be imprisoned at hard labor in default of paying his fine, the imprisonment was illegal, and he must be discharged.

Costs can be imposed by the Court as part of a sentence.

R.H Stanley, for petitioner.

S.H Phillips (Attorney-General), for the Marshal.

BEFORE HARTWELL, J.

DECISION

HARTWELL J.

The Marshal's return to the writ was as follows:

" In obedience to within writ, I do bring into this Honorable Court the body of the within named Apuna. Said Apuna was committed to my custody on the 12th day of August, A.D. 1869, by virtue of a mittimus to me directed from the Fourth Judicial Circuit of the Hawaiian Islands, in words and figures as follows, to wit:

‘ Circuit Court of the Hawaiian Islands, Nawiliwili, August Term, A.D. 1869. To W. C. Parke, Esq., Marshal of the Hawaiian Islands, Greeting: Whereas Apuna (P.) has been convicted at the present term of this Court of the crime of selling opium without a license, and has this day been sentenced by the said Court to pay a fine of three hundred ($300) dollars, with costs of Court, seventy-seven 80-100 ($77.80) dollars:

‘ Therefore, you are hereby commanded to receive the said Apuna into your custody, and see the above sentence duly executed.

‘ Witness the Honorable H. A. WIDEMANN, Second Associate Justice of the Supreme Court, at Nawiliwili, this 12th day of August, A.D. 1869.

‘ [Seal.] (Signed) DUNCAN MCBRYDE, Clerk.’

" And I do hereby return this writ complied with this 8th day of November, A.D. 1869. W. C. PARKE, Marshal."

" And I do hereby make further return that the said Apuna now is and has been held to hard labor since the commitment to my custody. W. C. PARKE, Marshal."

The petitioner's traverse to the Marshal's return denies that the Court had any authority so to sentence, or that there was any crime by the prisoner committed to authorize or justify the sentence imposed, or the issuing of such mittimus, the same not being justified by the law under which he was convicted, viz., selling opium without license; denies that the said mittimus is the process of the Circuit Court of the Fourth Judicial District, as it does not bear teste of said Court; denies that the Marshal, under said process, has authority to detain and imprison said Apuna at hard labor, or in any other manner, as he is commanded to execute the sentence, and imprisonment, or imprisonment at hard labor, forms no part of the sentence nor of the command in said mittimus; denies that the Marshal has, under said writ, or by authority of any law of this Kingdom, power to execute a sentence in any manner for fine with costs; denies that the Marshal has authority to execute a sentence for fine, or fine and costs, at hard labor, unless such sentence is so pronounced by the Court and recorded in the mittimus.

BY THE COURT.

The Constitution provides that " the privilege of the writ of habeas corpus belongs to all men, and shall not be suspended, unless by the King, when, in cases of rebellion or invasion, the public safety may require it; " that " no person shall be subject to punishment for any offense, except on due and legal conviction thereof in a court having jurisdiction of the case; " that " no person shall be deprived of life, liberty or property without due process of law; " that " every person has the right to be secure from all unreasonable searches and seizures of his person, " etc.; that " each member of society has a right to be protected by it in the enjoyment of his life, liberty and property according to law." Articles 5, 6, 9, 12 and 14.

The statute gives Justices of this Court, in Chambers, jurisdiction " to issue writs of habeas corpus, for inquiring into the cause of any alleged unlawful imprisonment or restraint." Section 855 Civil Code.

What is this writ of habeas corpus? In many of the United States there are statutes defining its nature and force; but they are all essentially alike, and are all in substance the same with the English Statute of 31 Car. II.

It is unnecessary to refer to the different writs of habeas corpus ad testificandum, ad satisfaciendum, etc., which are so named to denote the purpose for which they were issued. The writ always intended, if not otherwise described, is the writ ad subjiciendum et recipiendum, which was designed to release persons from illegal confinement. The writ was known in English law long anterior to Magna Charta, which secured the acknowledgment of common rights, as follows:

39. " Nullus liber homo capiatur, vel imprisonetur aut dissaisiatur aut utlagetur, aut aliquo modo destruatur; nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae."

40. " Nulli vendemus, nulli negabimus, aut differemus, rectum aut justitiam."

39. " No freeman shall be taken or imprisoned, or dispossessed, or outlawed, or banished, or in any manner destroyed; nor will we convict or sentence him, except by lawful judgment of his peers, or the law of the land."

40. " To none will we sell, to none will we deny or postpone, right or justice."

Lord Chatham, in speaking of these words in the House of Peers, used this memorable language: " They (your ancestors) did not say these are the rights of the great barons, or these are the rights of the great prelates. No, my lords: they said, in the simple Latin of the times, Nullus liber homo, and provided as carefully for the meanest subject as for the greatest. These are uncouth words, and sound but poorly in the ears of scholars; neither are they addressed to criticism of scholars, but to the hearts of freemen. These three words-Nullus liber homo-have a meaning which interests us all; they deserve to be remembered, they deserve to be inculcated in our minds-they are worth all the Classics."

After the Charter of Runnymede, the Petition of Right and the Bill of Rights were secured, and the three together form " The Bible of the English Constitution." In 1679 the Habeas Corpus Act of 31 Car. II. was passed. The Act of 56 George III. extended the power of the writ, and enabled the Judge before whom the writ is returned to inquire into the truth of the facts alleged therein.

It is common to speak of the privileges thus secured, but no sound jurist or thinker ever admitted that these privileges were anything but common rights under the law of England. The rights of persons in this Kingdom under writs of habeas corpus are, in my opinion, as fully secured...