In re Lucas Candido for a Writ Corpus

• Decision Date: 18 May 1931
• Docket Number: No. 1994.,1994.
• Citation: 31 Haw. 982
• Parties: IN THE MATTER OF THE APPLICATION OF LUCAS CANDIDO FOR A WRIT OF HABEAS CORPUS.
• Court: Hawaii Supreme Court

31 Haw. 982

IN THE MATTER OF THE APPLICATION OF LUCAS CANDIDO FOR A WRIT OF HABEAS CORPUS.

No. 1994.

Supreme Court of the Territory of Hawai‘i.

Submitted April 6, 1931.

Decided May 18, 1931.

APPEAL FROM CIRCUIT COURT FIRST CIRCUIT. HON. C. S. DAVIS, JUDGE.

Syllabus by the Court

Whipping with a cat-o'-nine-tails, administered, for violation of prison rules, to an incorrigible prisoner held in prison by virtue of a lawful conviction and sentence and so administered by order of the board of prison inspectors under statutory authority, is not prohibited by the Eighth Article of the Amendments to the Constitution of the United States in its provision against the infliction of “cruel and unusual punishments.”

The boards of prison inspectors are authorized by section 1544, R. L. 1925, to prescribe, in their discretion and as a disciplinary measure, whipping with a cat-o'-nine-tails to be administered to incorrigible prisoners.

E. J. Botts for petitioner.

H. R. Hewitt, Attorney General, and E. R. McGhee, Deputy Attorney General, for respondent.

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

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

Before a circuit judge at chambers a petition was filed by a next friend on behalf of Lucas Candido alleging: that the petitioner (Candido) was, in August, 1926, sentenced in the circuit court of the fourth circuit to a term of imprisonment in Oahu prison upon conviction of a felony and that he ever since has been and now is an inmate and prisoner in that prison; that the respondent Lane is the high sheriff of the Territory and warden of the prison; that the respondent “threatens and intends and will, unless restrained by this honorable court, inflict certain cruel and unusual punishment” on the petitioner “by flogging” him “with a cat-o'-nine-tails;” that “the said threatened flogging * * * is not pursuant to any process, judgment or decree of any competent court or tribunal of civil or criminal jurisdiction” and is illegal and in violation of the petitioner's constitutional rights. The prayer is that “to relieve the said” petitioner “of said unlawful imprisonment and detention,” for the purposes of the flogging, a writ of habeas corpus be issued directed to the respondent. Upon the filing of the petition an order was issued commanding the respondent to appear at a time and place named to “show cause, if any he have, why a writ of habeas corpus should not be issued as prayed for.” By the same order the respondent was commanded “in the meantime” to “desist from inflicting any corporal punishment on the” petitioner “until the further order of the court.”

After intermediate proceedings questioning the correctness of the procedure followed by the petitioner and the jurisdiction of the court by habeas corpus to grant the relief prayed for, the respondent filed a return to the order to show cause. In the return, admitting his custody of the petitioner, the respondent set forth that the petitioner was convicted in August, 1926, in the circuit court of the fourth circuit of the crime of burglary in the first degree on three charges and was sentenced to imprisonment in Oahu prison for a term of not less than five years nor more than twenty years on each charge, the sentences to run consecutively, and that the petitioner was now held by him in Oahu prison by virtue of a mittimus issued pursuant to those sentences. He further alleged that on September 12, 1929, he was authorized and directed by the board of prison inspectors for the first judicial circuit “to administer to” the petitioner “for his repeated violations of the rules and regulations governing the conduct of prisoners confined in Oahu prison, and for other wrongful and illegal conduct, not more than twenty-four lashes, the exact number of which are to be determined by respondent with the advice of the prison physician who is to be present when said lashes are administered;” that the petitioner “at all times since his commitment to said prison has been unruly, incorrigible and refractory * * *; that for various infractions and breaches of prison rules and prison discipline and for other misconduct” the petitioner “has heretofore been punished in such manner and form as said board has considered best and advisable in his best interests and for the welfare of the community and the discipline at Oahu prison; that such punishments as have heretofore been meted out” to petitioner “have not deterred him from further conduct subversive to good prison discipline, subversive to the authority of respondent, nor deterred him from committing breaches of prison rules, and that said board has determined that it would be useless again to inflict upon” the petitioner “forms of punishment which heretofore have had no restraining or beneficial influence upon him.” The respondent admits that by virtue of the direction of the board of prison inspectors and of the law he “proposes to administer to” the petitioner “not more than twenty-four lashes, in such manner and form as will not inflict serious or dangerous bodily injury, as a reasonable and necessary punishment for” the petitioner's “repeated violations of the rules and regulations governing the conduct of prisoners confined in the Oahu prison and for other wrongful and illegal conduct, and which said misbehavior has had a direct and immediate tendency to subvert the authority of respondent and to injure prison discipline.”

In a traverse to the return to the order to show cause the petitioner admits that he was convicted and sentenced as in the return alleged and that in September, 1929, the respondent was directed by the board of prison inspectors to administer a flogging as in the return stated, alleges that the board “directed his flogging as punishment for his escape from Oahu prison” and “denies that at all times during his confinement at Oahu prison he has been unruly, incorrigible and refractory and in this connection alleges that his misconduct wherever the same has occurred has been the direct result of the brutal treatment accorded him by officers in charge of the prisoners.”

The circuit judge decided that to whip the petitioner with the cat-o'-nine-tails would be in contravention of Article VIII of the Amendments to the Constitution of the United States which prohibits “cruel and unusual punishments” and signed and filed a “judgment” which, after a clause of recital, reads: “Now, therefore, it is hereby ordered that John C. Lane, high sheriff of the Territory of Hawaii and warden of Oahu prison, be and he is hereby ordered and directed to refrain and desist from inflicting or causing to be inflicted the punishment of flogging with a cat-o'-nine-tails on the body and person of the said Lucas Candido during his confinement in Oahu prison. And subject to the foregoing, the said Lucas Candido is remanded to the custody of John C. Lane, warden of Oahu prison as aforesaid.” From that judgment the case comes to this court upon the appeal of the respondent.

In the view which we take upon the main issue argued in this case it is unnecessary to decide whether the writ of habeas corpus may be used to test in advance the power of the warden of Oahu prison to inflict a flogging upon an incorrigible prisoner as a disciplinary measure or the question whether, in spite of the name “habeas corpus” given to this proceeding in the various papers filed, this is not in reality a suit for an injunction and the final “judgment” is not in reality an injunction. No opinion is expressed or intimation given on either of these questions.

The following is a statement, undisputed by evidence, of the misconduct of the petitioner since his commitment to prison and of the punishments inflicted on him: January 17, 1927, escaped from prison playground; February 21, 1927, recaptured and placed in dark cell for forty-eight hours, from which he was released and placed in the emergency cell; July 12, 1927, placed in dark cell for forty-eight hours for creating disturbance in emergency cell; August 7, 1927, confined in dark cell for sawing bars of emergency cell and in conjunction with others attempting to overpower guard with clubs and to escape on the night of July 31, 1927; August 5, 1927, classified as class “C” prisoner as of August 1, 1927; August 18, 1927, placed in dark cell for forty-eight hours for destroying clothing; March 10, 1928, placed in dark cell for forty-eight hours for cutting bars of cell; April 5, 1928, upon report to the board of prison inspectors that the petitioner had attempted with the use of a smuggled saw to cut the bars of his cell and to escape, the board declared that “it was the consensus of opinion” of its members “that apparently the type of punishment now used in merely confining these men in detention cells seems to have no effect on them” and decided “to handcuff” the petitioner “to the bars of his cell by the hands only, for a period of fifteen days from 8:00 o'clock until 11:00 in the morning, and from 1:00 o'clock until 4:00 in the afternoon, and to give him bread and water once a day and one ordinary meal a day * * * and to remove everything from his cell, giving him a canvas to sleep on, and inform him that it was the intention of the board not to put up with more of his unruly conduct in the future; that at the end of the minimum period of fifteen days he would be given a chance to show that he will behave himself, and that if he does not respond the time of this treatment will be increased. The board instructed the warden to keep in mind the health of the prisoner at all times and if the warden or the prison physician felt that the punishment was too severe to report this fact to the board.”

Resuming the petitioner's history: August 6, 1928, placed in dark cell for creating disturbances in emergency cell and removing electric light bulb from corridor; August 10, 1928, for unruly conduct and creating a disturbance, ordered handcuffed to bars from 8 to 11 A....