State v. Johnston, s. 4711

Decision Date26 May 1969
Docket NumberNos. 4711,4714,s. 4711
Citation51 Haw. 195,456 P.2d 805
CourtHawaii Supreme Court
Parties, 51 Haw. 259 STATE of Hawaii v. Robert Ritchie JOHNSTON, Jr. STATE of Hawaii v. Ralph Eugene FULLER.

Joseph A. Ryan, Honolulu (Ryan & Ryan, Honolulu, of counsel), for appellant.

Dennis A. Ing, Deputy Pros. Atty., City and County of Honolulu (John H. Peters, Prosecuting Atty., on the briefs), for appellee.

Before RICHARDSON, C. J., MARUMOTO, ABE, LEVINSON, JJ., and Circuit Judge FUKUSHIMA Assigned by Reason of Vacancy.

1. The jury is the sole judge of the credibility of witnesses.

2. The jury is the sole judge of the weight of the evidence.

3. When a jury verdict involves conflicting evidence and depends on the determination of credibility of witnesses or the weight of evidence, the test on appeal is whether there is substantial evidence to support the verdict of the jury.

4. The privileges and immunities clause of the Fourteenth Amendment prohibits a state from denying or abridging the privileges or rights of a citizen of the United States.

5. The privilege to serve as a juror in courts of Hawaii belongs to one as a citizen of the State of Hawaii and not as a citizen of the United States and the statute does not violate the privileges and immunities clause of the Fourteenth Amendment.

6. The equal protection guaranty prohibits class legislation, discriminating against some and favoring others. The guaranty does not take away from the states the right and power to classify the subjects of legislation, provided such classification of persons and things is reasonable for the purpose of legislation.

7. Legislature enjoys a wide discretion to classification, and often results in narrow distinction; however, if such distinction is reasonably related to the object of the legislation, the classification is justified and would not violate the equal protection guaranty.

8. The burden is on the party assailing a classification in a state statute to prove that it is an invidious discrimination.

9. The function of this court upon review of the constitutionality of the statute is not to determine whether the three-year residential qualification is sound or appropriate nor to pass judgments on the wisdom of the legislature in enacting the statute.

10. Assuming that the statute does not treat all citizens of Hawaii equally, the defendants have not met the burden of proving that the three-year residential qualification is an invidious discrimination by merely averring that the statute is unconstitutional.

11. Under the record of the cases, we hold the statute is constitutional.

12. The three-year residential qualification being constitutional, a jury impaneled from a list deemed qualified under the statute is a legally constituted impartial jury, and a trial by a jury so constituted fulfills the due process requirement.

ABE, Justice.

Defendants in the two cases were charged with the crime of lewdness for having masturbated in public restrooms in violation of HRS § 768-52(2).

In No. 4714, defendant Fuller was first tried in the District Court of Honolulu and was found guilty and sentenced to pay a fine of $25.00. Defendant perfected an appeal to the Circuit Court of the First Circuit demanding a trial by jury.

In both cases at the trials, before the jury was impaneled, defendants challenged the jury array on the ground that the three-year residential requirement for a citizen of the State to serve on the jury was unconstitutional. This motion was denied by the court without argument.

The jury was impaneled and after the trials, in both cases, the jury returned verdicts of guilty and judgments were entered accordingly. Defendants appealed.

I.

The first specification of error in No. 4714 is that § 768-52(2) as interpreted and enforced in that case makes the statute void for vagueness. Defendant is not attacking the constitutionality of the statute but his contention is that because the detectives who testified for the State did not give the same testimony in the district court and the circuit court, the offense of lewdness depends upon the 'opinion' of the arresting officers which may change from 'moment to moment' and therefore the law as enforced in this case is unconstitutional.

In essence, defendant by his first specification of error is questioning the credibility of the witnesses or the weight of evidence. This court has held in numerous cases that the jury is the sole judge of the credibility of the witnesses or the weight of evidence. State v. Kekaualua, 50 Haw. 130, 433 P.2d 131 (1967); State v. Carvelo, 45 Haw. 16, 361 P.2d 45 (1961).

We also stated in State v. Kekaualua, supra, 50 Haw., at 132, 433 P.2d, at 133: '(w)hen a jury verdict involves conflicting evidence and depends on the determination of credibility of witnesses or the weight of evidence, the test on appeal is whether there is substantial evidence to support the verdict of the jury.' See also, Territory v. Ebarra, 39 Haw. 488, 492 (1952); Territory v. Gagarin, 36 Haw. 1, 5 (1941).

The record shows that there was substantial evidence to support a guilty verdict against defendant.

Therefore, we find no merit in the first specification of error.

II.

In both cases the basic issue is the constitutionality of the three-year residential qualification for jurors of this State.

This issue raises a very serious and interesting question and for its determination we believe a brief review of the history of trial by jury may be helpful.

'The theory of the early trial by jury, as of the earlier recognition from which it sprung, was that the jurors were required to come from the vicinage or neighborhood and declare their vere dictum on their oaths and of their knowledge * * *.

'By the time of Henry VI (1422-1461) the separation of jurors and witnesses is complete, but the idea that jurors must come from the neighborhood and not be wholly strangers to the fact, and that they could disregard the sworn testimony of witnesses in arriving at their verdict, persisted in England as late as 1816.' 1

'It nevertheless appears that the functions of the ancient and modern juries It is to be noted that provisions in both the United States Constitution and the Constitution of the State of Hawaii require that in all criminal prosecution the accused shall be tried by an impartial jury of the state and district wherein the crime was committed. 3

are distinct, in that the former, in most instances, were merely compurgators, deciding on their own knowledge while the latter are judges of facts, deciding evidence; yet the two are connected by the tribunal of mixed function, which decided on its own knowledge, assisted by the testimony of witnesses; and from all of these came the jury, as now existing, which decides exclusively on the evidence presented before him. Just when and precisely how these changes came to pass, as beforesaid, are points which none of the students of the subject seem able to tell us much about.' 2

The reason given for the rule requiring a jury to be from the vicinage or district, and which unquestionably weighed in its development, is that the accused shall have the benefit on his trial of his own good character and standing with his neighbors if he had preserved them and also of such knowledge as the jury may possess of the witnesses who may give evidence against him. State v. Bunker, 38 Kan. 737, 741, 17 P. 651 (1888). Another reason sometimes given is that the provision insures a person charged with a crime from being transported to a distant site for trial, where he cannot have the benefit of the presence of his witnesses and of having their statements weighed by jurors who are generally acquainted with them. Oborn v. State, 143 Wis. 249, 126 N.W. 737, 31 L.R.A.,N.S., 966 (1910); Zanone v. State, 97 Tenn. 101, 36 S.W. 711, 35 L.R.A. 556 (1896); State v. O'Brien, 35 Mont. 482, 90 P. 514 (1907).

It is general law that when a defendant is tried by a jury impaneled in a county or jurisdiction other than the county or jurisdiction wherein the crime was committed, his constitutional right to be tried by an impartial jury of the district or jurisdiction wherein the crime was committed is violated. Althoff v. Indiana, 209 Ind. 42, 197 N.E. 896, 102 A.L.R. 1031 (1935); Commonwealth v. Jones, 118 Ky. 889, 82 S.W. 643 (1904).

This being the law, a criterion must be set to meet this constitutional requirement, and the State legislature is the proper body to determine such criterion.

In discharge of its function, the Hawaiian legislature enacted HRS § 609-1 which provides as one of the qualifications of a juror that he must have resided in the State of Hawaii for not less than three years. 4

It is of interest to note that the Congress of the United States discharged the function with regard to jurors in federal courts. In 1957 by Pub.L. 85-315, it amended the statute on qualifications of federal jurors by providing that to qualify as a juror one must have 'resided for a period of one year within the judicial district' 5 in place

of the former requirement that one must have 'resided within the judicial district.'

A. PRIVILEGES AND IMMUNITIES CLAUSE

One of defendants' contentions is that the three-year residential qualification for jurors violates the privileges and immunities clause of the Fourteenth Amendment.

The Fourteenth Amendment, Section 1, provides:

'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States * * *.'

In Presser v. Illinois, 116 U.S. 252, at page 266, 6 S.Ct. 580, at page 584, 29 L.Ed. 615 (1886), the court, in interpreting the privileges and immunities clause of the Fourteenth Amendment, stated:

'It is only the privileges and immunities of citizens of the...

To continue reading

Request your trial
19 cases
  • Brown v. State
    • United States
    • Maryland Court of Appeals
    • October 26, 1977
    ...A.2d 207 (Del.1968); Anderson v. State, 241 So.2d 390 (Fla.1970); Scott v. State 229 Ga. 541, 192 S.E.2d 367 (1972); State v. Johnston, 51 Haw. 195, 456 P.2d 805 (1969); State v. Carvelo, 45 Haw. 16, 361 P.2d 45 (1961); People v. Mentola, 47 Ill.2d 579, 268 N.E.2d 8 (1971); People v. Baer, ......
  • Hawaiian Land Co., In re, 4829
    • United States
    • Hawaii Supreme Court
    • August 6, 1971
    ...burden of proving that it does not rest upon reasonable basis and that it is an invidious discrimination * * *.' State v. Johnston, 51 Haw. 195, 206, 456 P.2d 805, 812 (1969). And the Taxpayer has not met this The remaining basic issue on appeal is the interpretation of HRS § 232-3(1) (1968......
  • State v. Freitas
    • United States
    • Hawaii Supreme Court
    • November 9, 1979
    ...persons similarly situated shall be treated alike, both in the privileges conferred and in the liabilities imposed. State v. Johnston, 51 Haw. 195, 456 P.2d 805 (1969), Appeal dismissed, sub nom. Johnston v. Hawaii, 397 U.S. 336, 90 S.Ct. 1152, 25 L.Ed.2d 352 (1970). It does not, however, r......
  • Nelson v. Miwa
    • United States
    • Hawaii Supreme Court
    • February 24, 1976
    ...the strict judicial scrutiny required because the policy affects a fundamental right to public employment. In State v. Johnston, 51 Haw. 195, 456 P.2d 805 (1969), appeal dismissed, 397 U.S. 336, 90 S.Ct. 1152, 25 L.Ed.2d 352 (1970), we explained the effect of the equal protection clause as ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT