In re Josephine Silva for the Support Child, 2070.

• Decision Date: 01 November 1933
• Docket Number: No. 2070.,2070.
• Citation: 32 Haw. 855
• Parties: IN THE MATTER OF THE APPLICATION OF JOSEPHINE SILVA FOR THE SUPPORT OF HER BASTARD CHILD.
• Court: Hawaii Supreme Court

32 Haw. 855

IN THE MATTER OF THE APPLICATION OF JOSEPHINE SILVA FOR THE SUPPORT OF HER BASTARD CHILD.

No. 2070.

Supreme Court of the Territory of Hawai‘i.

Argued October 9, 1933.

Decided November 1, 1933.

ERROR TO CIRCUIT COURT FIRST CIRCUIT. HON. E. M. WATSON, JUDGE.

Syllabus by the Court

In proceedings for the support of bastards under the provisions of chapter 179, R. L. 1925, and amendments thereto, prosecution is barred if begun more than six months after the birth of the child.

Within the purview of chapter 179, R. L. 1925, and amendments thereto, prosecution is not begun by the application therein provided to the judge of the juvenile court nor by the ex parte examination of the applicant to determine probable cause, but by the issuance of the warrant therein provided for the arrest of the accused.

The warrant referred to in the above named bastardy statutes is “issued” when it is prepared and placed in the hands of a person authorized to serve it with the intent to have it served.O. P. Soares (also on the briefs) for plaintiff in error.

G. R. Corbett, Deputy City and County Attorney (also on the brief), for defendant in error.

PERRY, C. J., BANKS AND PARSONS, JJ.

OPINION OF THE COURT BY PARSONS, J. (Banks, J., dissenting.)

This is a statutory bastardy proceeding, before us upon writ of error issued upon the application of Masao Takamatsu accused, against whom verdict and judgment were rendered in the court of domestic relations. The record shows that application for the relief provided by statute was made under date of May 15, 1931, by Josephine Silva, who therein charged in effect and among other things that on November 18, 1930, in Honolulu, she gave birth to a female child; that Masao Takamatsu is the father of said child, which was begotten on or about February 18, 1930; that on said last named date applicant was a resident and is still a resident of Honolulu; that on said last named date and prior thereto the accused was a resident of Honolulu where he has since resided and where he now resides; and at the time said child was begotten and at the time said child was born the applicant was an unmarried female. Said application was supported by applicant's affidavit bearing the same date and to the same effect. The statement of facts by Josephine Silva, upon examination under oath as required by section 3054, R. L. 1925, was signed by the judge of said court and was thereafter filed. The statement recites that said examination was on the 15th day of May, 1931. Its allegations are to the same effect as the application and affidavit and it contains, inter alia, the additional averment “that applicant is now of the age of sixteen years and ten months; and applicant is informed and believes that said Masao Takamatsu is of the age of 18 years.”

At or about 1:45 P. M., May 18, 1931, the above named application, affidavit and statement of facts, together with a so–called warrant of arrest, were delivered by a clerk of the division of domestic relations to John Lee Kwai, a clerk of the first circuit court, with the request that the latter file the same. This, John Lee Kwai proceeded to do, the filing stamp bearing the date and hour last above set forth. At that time the warrant of arrest was unsigned and the return day was left blank. A return day was supplied and inserted by the clerk and the unsigned warrant was returned to the clerk of the division of domestic relations who, two days later, to–wit, on Wednesday, May 20, 1931, returned it to the filing clerk with instructions to place it in the hands of a police officer for service. The earlier return day above referred to having then already arrived, a new return day was inserted by the clerk and the warrant was placed in the hands of a police officer for service and was by the latter served upon the accused the following day, to–wit, May 21, 1931.

The warrant of arrest as served upon the accused was signed by the judge and among other things directed that the serving officer arrest the accused and have the latter's body before the judge of said court at the latter's court room at 9:30 A. M., Friday, May 29, 1931. As shown by the officer's return of service the application, affidavit, statement of facts and warrant of arrest were served upon the accused by the delivery to him of certified copies of the same and exhibition to him of the originals. On the return day the accused, under a special appearance, moved that the said warrant and purported service thereof be quashed on the ground “that said warrant of arrest does not run in the name of ‘The Territory of Hawaii,’ ” as required by law. Whereupon the court permitted the warrant of arrest to be amended by inserting after the words “warrant of arrest” the words “the Territory of Hawaii” and denied the motion to quash, which ruling was duly excepted to. The first assignment by the accused is that the court erred in overruling said motion to quash.

On June 12, 1931, the accused, under special appearance, filed in said court and cause his plea in bar based upon the following grounds, namely: “1.––That the prosecution of said matter was begun more than six months after the birth of the child referred to in the files of said matter; 2.––That he is a minor; 3.––That no proper or any process has been served upon him.” This plea was supported by the affidavit of the accused deposing among other things that he was not yet twenty years of age, having been born October 21, 1912; and that during a period from the time prior to the 18th day of November, 1930, to and including the date of said affidavit he had been continuously a resident of Honolulu, City and County of Honolulu, Territory of Hawaii, during which period he had at no time been absent from said Territory. The plea in bar was overruled and exception taken. Accused's second assignment of error is to the order overruling said plea.

On February 16, 1932, the case came on for trial upon accused's plea of not guilty. Prior to the impaneling of the jury accused entered of record his objection to the taking of testimony, said objection being based upon the same grounds theretofore set forth as above recited in his motion to quash and plea in bar. The objection was overruled and exception noted. Accused's fourth assignment of error is to the last named ruling.

After trial the jury returned a verdict finding that “the defendant, Masao Takamatsu, is the father of the illegitimate child of Josephine Silva,” upon which verdict judgment, under date of May 6, 1932, was entered to the same effect, said judgment further ordering “that the said Masao Takamatsu shall pay to the said Josephine Silva, for the support of said child, the sum of eight dollars ($8.00) per month, the first payment to be made forthwith, the next payment to be made upon the 1st day of June, A. D. 1932, other installments to be similarly paid on the 1st day of each and every month, until said child shall have attained the age of two years; and the sum of ten dollars ($10.00) per month to be paid on the 1st day of each and every month, until the said child shall have attained the age of five years; and the sum of twelve and 50/100 dollars ($12.50) per month to be paid on the 1st day of each and every month, until the said child shall have attained the age of ten years; and from the time said child shall have attained its tenth year until it shall have attained its fourteenth year, to likewise pay the said Josephine Silva on the 1st day of each and every month the sum of fifteen dollars ($15.00), in case said child shall live to that time. All payments to be made at the office of the chief clerk of this court.” Accused's seventh assignment of error is based on said judgment.

Accused's writ of error is supported by seven assignments, numbers one, two, four and seven being upon the rulings above set forth.

Assignment number three alleges error in the order overruling Masao Takamatsu's demurrer. A copy of the demurrer is not in the record before us and was not required by the praecipe. Assignment number three is not contained in counsel's specification of assignments of error relied upon, is not argued in his brief and was not presented orally. It is therefore deemed to have been waived and for that reason is not considered.

Assignment number five is that “the court erred in denying Masao Takamatsu's motion for a directed verdict,” and assignment number six is that “the court erred in overruling Masao Takamatsu's motion for a new trial.” Neither motion for a directed verdict nor motion for a new trial is copied in the record or referred to in the transcript or minutes of the clerk transmitted to this court. Assignments five and six therefore will not be considered.

This leaves for disposition assignments one, two, four and seven. The case is finally determinable upon jurisdictional grounds urged in assignment number two, repeated in assignments four and seven. In this view consideration of assignments one, and of assignments four and seven in other respects, is unnecessary. The part of assignment two last...