Republic Hawai`i v. Edwards
| Decision Date | 31 May 1899 |
| Citation | 12 Haw. 55 |
| Parties | REPUBLIC OF HAWAII v. G. L. EDWARDS. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
During the present transition period, felons may be prosecuted without the intervention of a grand jury and convicted by nine out of twelve petit jurors, as permitted by Hawaiian statutes, notwithstanding the fifth and sixth amendments to the Constitution of the United States and the clause in the Joint Resolution of annexation which provides for the continuation of Hawaiian municipal legislation not inconsistent with the Constitution of the United States.
Attorney-General H. E. Cooper and Deputy Attorney-General E. P. Dole for the prosecution.
G. A. Davis and L. A. Dickey for the defendant.
The defendant having been convicted of an attempt to commit sodomy came to this court on exceptions and a writ of error based mainly on the following grounds: (1) that the trial judge erred in his instructions to the jury in regard to the right to convict on the uncorroborated testimony of an accomplice and (2) that the trial and conviction were illegal because the indictment had been found a true bill by the circuit judge as required by Hawaiian statutes and not by a grand jury as supposed to be required by the fifth amendment to the Constitution of the United States and because the verdict was rendered by ten only of the twelve petit jurors as permitted by Hawaiian statutes and was not unanimous as supposed to be required by the sixth amendment to the said Constitution. This court (then differently constituted owing to the absence of one of the Justices, in whose place a member of the bar sat) found that there had been no error and overruled the exceptions and dismissed the writ (11 Haw. 571) but afterwards, upon motion, granted this rehearing.
Nothing has been adduced in argument that requires us to add to what was said in the former opinion in regard to the first of the above mentioned grounds.
The main question is whether the fifth and sixth amendments to the Constitution of the United States extended to these islands at the time of the conviction, August 16, 1898, four days after the transfer of the sovereignty of these Islands to the United States in pursuance of the Joint Resolution of Congress, approved July 7, 1898, to provide for annexing these Islands to the United States.
It has just been held by this court in the case of W. C. Peacock & Co., Ltd. v. Republic of Hawaii, ante p. 27, that, assuming that various provisions of the Constitution of the United States in regard to which there is great difference of opinion extend for the purposes of ordinary or permanent congressional legislation to territory belonging to the United States as well as to the States proper, they do not necessarily extend of their own force to newly acquired territory immediately upon its acquisition, but that the laws and government of the ceded territory continue for such reasonable time as may in the judgment of the political department of the government be deemed requisite for the enactment of suitable legislation for the new territory in conformity with the provisions of the Constitution. If, therefore, we assume, as we did in the Peacock case, that the constitutional provisions in question would under ordinary circumstances extend to Hawaii, still we must hold, as in that case, that they were not in force here ex proprio vigore immediately after the transfer of sovereignty. The question then remains whether they were intended by Congress to be extended here forthwith. That case and this are alike in this respect, that in each the question whether the constitutional provisions respectively involved extend to Hawaii during the present transition state is a question of the construction of the Joint Resolution of annexation with a view to ascertaining the intention of Congress. They differ in this, that in the Peacock case, which involved the constitutional provision with reference to uniformity of customs duties it was expressly declared in the Joint Resolution of annexation that the customs relations of these Islands with the United States and other countries should continue until the United States customs laws should be extended to these Islands, while in the present case there is no clear declaration one way or the other. There is, it is true, one paragraph in the Joint Resolution which might at first reading seem to indicate, by implication, an intention to extend the provisions of the Constitution to these Islands at once. It is this:
We held in the Peacock case that, whatever inference might be made from this language if standing alone, it was controlled so far as customs duties were concerned by the more particular clause immediately following it expressly declaring that the customs relations of these islands with the United States and other countries should continue until further action by Congress. But there is no similar express declaration in regard to indictments and jury trials.
The argument is that, on the principle of expressio unius, exclusio alterius, the expression of an intention to continue in force those Hawaiian laws which were not inconsistent with the Constitution of the United States implies an intention to discontinue those laws which were inconsistent with the Constitution; and that the effect of this clause in the Joint Resolution is to bring this case within the decisions referred to in the Peacock case, which have held various territorial acts unconstitutional on the ground that the Constitution was in force in the territories by act of Congress whether in force there per se or not. The clauses in former acts which have been the subject of construction in the decisions referred to are variously worded but in substance they are in general either positive provisions expressly extending the Constitution of the United States to the Territory in question worded somewhat as follows: “The Constitution and laws of the United States shall have the same force and effect in the Territory as elsewhere in the United States,” or else they are limitations upon the exercise of legislative power in the future, worded somewhat as follows: “The legislative power of the Territory shall extend to all rightful subjects of legislation not inconsistent with the Constitution and laws of the United States.” It is clear that under neither of such clauses is there any occasion for a resort to an argument by implication. In the one case the Constitution was expressly and affirmatively extended to the Territory. In the other case legislative power was conferred to be exercised only in so far as it should not be inconsistent with the Constitution, and of course the power could not be exercised beyond the extent to which it was granted, for it did not exist at all except in so far as it was granted. The decisions, therefore, based on such statutes cannot govern this case. The argument here is solely one of inference. But is it not a sound argument in itself irrespective of the decisions under dissimilar statutes?
If we are to argue from inference we must argue from all the inferences—inferences from other parts of the Joint Resolution, from the Resolution as a whole and from the circumstances under which it was adopted, as well as from the particular clause referred to.
It may be observed, preliminarily, that the inference...
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State v. Tominaga
...v. Yamane, 12 Haw. 189. However, that case was decided prior to the institution of the grand jury in this jurisdiction. See Rep. of Hawaii v. Edwards, 12 Haw. 55 and 11 Haw. 571. The object and purpose of a preliminary hearing at that time to determine probable cause leading up to prosecuti......