State v. Shigematsu

• Decision Date: 07 April 1971
• Docket Number: 4990,Nos. 4989,s. 4989
• Citation: 483 P.2d 997,52 Haw. 604
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Samuel SHIGEMATSU et al., Defendants-Appellees. STATE of Hawaii, Plaintiff-Appellant, v. Thomas I. FREEMAN et al., Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 997

483 P.2d 997

52 Haw. 604

STATE of Hawaii, Plaintiff-Appellant, v. Samuel SHIGEMATSU et al., Defendants-Appellees.

STATE of Hawaii, Plaintiff-Appellant, v. Thomas I. FREEMAN et al., Defendants-Appellees.

Nos. 4989, 4990.

Supreme Court of Hawai'i.

April 7, 1971.

Syllabus by the Court

1. A statute proscribing presence at a 'barricaded place' as defined by HRS § 746-6 is too vague and overly broad to satisfy the constitutional requirements of due

process embodied in Article I, Section 4 of the Constitution of the State of Hawaii and the Fourteenth Amendment of the Constitution of the United States.

2. A state may curtail or restrict acts of individuals in the legitimate exercise of its police power unless such curtailments or restrictions unreasonably infringe upon fundamental personal rights of individuals.

3. Though the suppression of gambling may be a legitimate state objective, it may not be pursued by unreasonably infringing upon fundamental personal rights.

4. Among the inalienable rights guaranteed by Article I, Section 2 of the Constitution of Hawaii is the freedom of the enjoyment of life, liberty and pursuit of happiness.

5. Encompassed within the rights of the enjoyment of life, liberty and the pursuit of happiness are the freedoms of movement and association since their absence or denial characterizes confinement and imprisonment.

6. The exercise of the police power may not unreasonably infringe upon the freedom of movement nor freedom of association.

7. Since HRS § 746-6 goes far beyond proscribing gambling by making mere presence a crime, it unreasonably infringes upon the freedom of movement and the freedom of association.

8. Unreasonable interferences with fundamental rights cannot be upheld merely because the crime or penalty imposed is considered relatively insignificant.

Joseph A. Kinoshita, Deputy Pros. Atty., (Barry Chung, Pros. Atty., Honolulu, with him on the briefs) for plaintiff-appellant.

T. Irving Chang, Honolulu (Jack H. Mizuha, Honolulu, with him on the brief) for defendants-appellees.

Before RICHARDSON, C. J., MARUMOTO, ABE and LEVINSON, JJ., and M. DOI, Circuit Judge in place of KOBAYASHI, J., absent due to illness.

ABE, Justice.

The defendants were originally charged in the district court with the violation of HRS § 746-6 ¹ because they 'were found present in a room or place barred, or barricaded, or built, or protected in a manner to make it difficult of access or ingress to police officers where gambling implements were exhibited or exposed to view.'

The district court denied the defendants' motions for dismissal in both cases and upon demands for jury trial, the cases were committed to the Circuit Court of the First Circuit for jury trial. Prior to jury trial, both cases were consolidated for hearing on the motions for dismissal. After the hearing, the circuit court ruled that HRS § 746-6 was unconstitutional and dismissed the charges against the defendants. The State appealed from this ruling.

I.

The first question before us is whether the statute is so vague and overly broad that it violates the due process of law clauses of the United States Constitution and the Hawaii State Constitution. Not too long ago we struck down an ordinance which made the presence at a cockfight a criminal offense and we said:

'A fundamental aspect of the somewhat amorphous concept of due process of law is that a penal statute must state with reasonable clarity the acts it proscribes. Territory of Hawaii v. Naumu 43 Haw. 66 (1958); Territory v. Anduha, 31 Haw. 459 (1930), aff'd 48 F.2d 171 (9th Cir. 1931). A criminal statute is unconstitutional if it is not sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties * * *. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).' State v. Abellano, 50 Haw. 384, 385, 441 P.2d 333, 334 (1968).

The State attempts to differentiate the offenses of 'being present at a cockfight,' or 'being present at a gambling game' from the offense charged here. It argues that under HRS § 746-6, 'the requirement of presence * * * is within a narrowly confined place * * * so that a determination of presence is unquestionable.' We disagree with the State. We see no difference; the offense charged here is the presence of persons in a room barricaded or otherwise so built or protected to make access or ingress to police officers difficult and where gambling implements were exhibited or exposed.

Any home built with locks in the doors would come within the term 'any such room, house, or place * * * built or protected in a manner to make it difficult of access or ingress to police officers.' Also, the statute makes it an offense for any person to be present in such 'room, house or place,' where any gambling implements, such as cards, dice, dominoes, etc., are exhibited or exposed. Thus, it would appear that any person within a room of his home where cards, dice or chips are in view would be violating the statute.

We have no doubt that the statute is vague and overly broad and therefore violates the due process of law guaranteed by the Fourteenth Amendment of the Constitution of the United States and Article I, Section 4 of the Constitution of the State of Hawaii.

II.

The statute, besides being vague and overly broad, suffers further constitutional deficiencies.

It is generally recognized that in the exercise of its police power the State may curtail or restrict acts of individuals unless the curtailments or restrictions unreasonably infringe upon the fundamental personal rights of individuals. Territory v. Kraft, 33 Haw. 397 (1935).

The State, in the legitimate exercise of its police power, has proscribed by the statutes all forms of gambling. But, apparently, to alleviate the enforcement problems inherent in gambling statutes the legislature enacted the statute in question. The issue here is whether for the purpose of suppressing the evils of gambling, the State may make the mere presence on premises meeting the description set forth in HRS § 746-6, and where cards, dice or other gambling implements are in view a criminal offense. Perhaps it is correct that people who go to places such as the sites where the defendants were arrested would probably do so to gamble. However, this does not preclude the possibility that others may enter such premises for purposes other than gambling without knowing that gambling is being carried on. Then, some people may enter such premises merely to watch others gamble.

The State may argue that the statute in question is rationally related to the suppression of gambling. The gist of the offense under the statute is the mere presence on the premises fitting the description of HRS § 746-6, ² were gambling implements are exhibited or exposed to view. Yes, the statute may facilitate the suppression of gambling. To convict one under the statute, gambling need not be proved because the offense is mere presence. Thus, all persons found on the premises, whether they were participating in gambling, bystanders merely watching others gamble, or other innocent persons who just happened to be there at the time of the arrest without any prior knowledge of gambling, would all be chargeable with the violation of the statute. It would be like a contraption made to catch those guilty of gambling at the expense of the innocent. Should such an overly broad statute be upheld because it would help in suppressing gambling?

It is true the statute may suppress gambling and the evils connected therewith, but though the suppression of gambling may be 'legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.' Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960).

The United States Supreme Court in Talley v. California, 362 U.S. 60, 64, 80 S.Ct. 536, 538, 4 L.Ed.2d 559 (1960) said:

'Counsel has urged that this ordinance is aimed at providing a way to identify those responsible for fraud, false advertising and libel. Yet the ordinance is in no manner so limited, * * *. Therefore we do not pass on the validity of an ordinance limited to prevent these or any other supposed evils. This ordinance simply bars all handbills under all circumstances anywhere that do not have the names and addresses printed on them in the place the ordinance requires.

'There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression. 'Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value.' Lovell v. City of Griffin, 303 U.S. (444) at page 452, 58 S.Ct. (666) at page 669 (82 L.Ed. 949).'

And the United States Supreme Court held the ordinance void on its face.

In the Bill of Rights of the Hawaii State Constitution it is declared: 'All persons are free by nature and are equal in their inherent and inalienable rights. Among these rights are the enjoyment of life, liberty and the pursuit of happiness, * * *.' ³

It appears to us that among the rights encompassed under the term 'inalienable rights' for the 'enjoyment of life, liberty and the pursuit of happiness,' are freedom of movement and freedom of association. Such rights are necessary foundations to our American way of life since their absence or denial characterizes confinement and imprisonment.

They are just as important...