Territory Hawai`i v. Marshall

• Decision Date: 09 October 1900
• Parties: THE TERRITORY OF HAWAII v. W. H. MARSHALL.
• Court: Hawaii Supreme Court

13 Haw. 76

THE TERRITORY OF HAWAII

v.W. H. MARSHALL.

Supreme Court of the Territory of Hawai‘i.

Submitted July 13, 1900.

Decided October 9, 1900.

EXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT.

Syllabus by the Court

Sections 304-306 of the Penal Laws are not void for defectiveness or unconstitutional because they divide the offense of making, as also that of publishing a libel, into two degrees without distinguishing between them except by the amount of the penalty and leave it to the court or jury authorized to decide on the facts to determine the degree.

Verdicts by nine or more of the twelve jurors were lawfully received after the annexation of these islands to the United States but before the establishment of a Territorial government by Act of Congress.

Where the record shows a plea of not guilty in the District Court, it is not necessary that the defendant should plead again on his appeal in the Circuit Court, or that he should plead to a charge as amended in matter of form where the has pleaded to the original charge.

W. O. Smith for the prosecution.

J. T. De Bolt for the defendant.

FREAR, C.J., GALBRAITH, J., AND J. A. MAGOON, ESQUIRE, OF THE BAR, IN PLACE OF PERRY, J., ABSENT.

OPINION OF THE COURT BY FREAR, C.J.

(Galbraith, J., dissenting.)

On September 20, 1899, the defendant was convicted and sentenced by the District Magistrate of Honolulu on a charge of making and publishing a libel in the first degree concerning the late Chief Justice Judd. He appealed to the Circuit Court and pending his appeal was admitted to bail but subsequently his surety surrendered him and he sued out a writ of habeas corpus in the Supreme Court of the Republic of Hawaii, claiming that the statute relating to libel was void for uncertainty and defectiveness and unconstitutional. The Court held the statute valid and remanded the defendant to custody (In re Marshall, 12 Haw. 366) and he was again enlarged on bail. Afterwards he was tried on his appeal in the Circuit Court on a charge amended so as to cover the publishing but not the making of a libel and was found guilty by a verdict rendered by nine of the twelve jurors. He now comes here on exceptions. The points relied on will be considered in their order.

The defendant renews his contention made but not sustained in the habeas corpus proceedings, that the statute which divides the offense of making, as also that of publishing a libel, into two degrees is defective in that it does not define the degrees, and unconstitutional as an attempt on the part of the legislature to delegate to the court or jury the power to determine the degrees. In those proceedings the court held that the statute in creating two degrees did not create two offenses, but that it created only one offense, and then divided it into degrees with respect to the penalty only, and that that was a constitutional exercise of legislative power.

The statute (Pen. L., Ch. 32) after defining a libel (Sec. 299), the making of a libel (Sec. 300) and the publishing of a libel (Sec. 301) provides as follows:

“Sec. 304. The offense of making, as also that of publishing a libel, is of two degrees, and the degree is to be found by the jury, or determined by the Court or Magistrate authorized to decide on the facts; and so also the degree is to be determined by the Court before which proceedings are had, where the facts charged are admitted by plea or otherwise.

“Sec. 305. Whoever is guilty of the offense of making or publishing a libel in the first degree, shall be punished by imprisonment at hard labor not more than one year, or by fine not exceeding one thousand dollars, in the discretion of the Court.

“Sec. 306. Whoever is guilty of the offense of making or publishing a libel in the second degree, shall be punished by imprisonment at hard labor not more than three months, or by fine not exceeding three hundred dollars, in the discretion of the Court.”

Under the statute there is an offense of making a libel and an offense of publishing a libel. Each of these is carefully defined. But it is contended that the legislature, without itself fully defining any offense, attempted to create two offenses (degrees) of making a libel and two of publishing a libel, and to leave it to the court or jury to complete the definitions, and that it is not competent for the legislative branch of the government to delegate authority to the judicial branch to determine what shall constitute an offense; that it is the right of the accused to be informed clearly what he is to meet, and that under this statute it is impossible to so inform him, because the same facts might constitute either of the degrees of making a libel or either of the degrees of publishing a libel; that it would be impossible for the trial judge to instruct the jury as to the elements that constitute the respective degrees, or for him or the appellate court to say whether a verdict of guilty in one degree or the other is contrary to the law or the evidence, since there is nothing in the statute to distinguish between the elements which constitute the respective degrees.

Undoubtedly the legislature cannot delegate to the court or jury, power to define criminal offenses. On the other hand it may constitutionally confer upon the jury as well as upon the court discretionary power to determine within prescribed limits the nature and amount of the penalty. Thus, the jury may be permitted to decide whether the penalty in a case of murder shall be death or imprisonment for life (State v. Hockett, 70 Ia. 442;Rice v. State, 7 Ind. 332;People v. Welch, 49 Cal. 174), or whether in a case of grand larceny it shall be death or imprisonment for not less than one nor more than ten years (People v. Littlefield, 5 Cal. 355; see 49 Cal. 180), or the jury may assess the precise amount of the fine or imprisonment or both within the prescribed limits (Cook v. Greene, 1 Gr. (Ia.) 56; State v. McQuaig, 22 Mo. 319). Our statute relating to libel prescribes a limit in each case, namely, imprisonment for not more than three months or fine not exceeding three hundred dollars in one case, and imprisonment for not more than one year, or fine not exceeding one thousand dollars in the other case.

The question therefore is one of construction. The law as to constitutionality is well settled. The legislature cannot leave it to the jury to define the offenses; it may leave it to them to determine either the precise penalty or the general limits within which the precise penalty must be fixed by the court. The question is, to which class does this statute belong? The word degree is of doubtful meaning. It means a grade. But it may mean a grade distinguished from other grades by the presence or absence of one or more particular elements, in which case it means a separate crime or offense, or it may mean a grade in mere intensity or aggravation, without requiring the presence or absence of any particular element to distinguish it from other grades. In the one case the legislature specifies the distinguishing element or elements, and in so doing practically really defines so many different offenses or crimes; in the other case it defines one crime and may leave it to the court or jury to say within certain limits what the penalty shall be, according to the aggravation of the case. It is immaterial in what words it may undertake to do this, so long as it does it. The substance, not the form, is the important thing. If the legislature defines an offense and then leaves it to the jury to say whether the penalty shall be more or less, it is immaterial whether it speaks of the offense as being in one degree or the other according as the jury find, or whether it provides that the jury may so find by expressly naming the amount of the penalty or by saying in general terms that it shall be the larger or the smaller penalty or by saying that the case is a more or less aggravated one or one deserving the larger or smaller penalty or one of a higher or lower degree. In some cases the legislature may easily name distinguishing elements and so define different offenses; in other cases, as in the case of libel, it can not do so except in a very limited or incomplete or unsatisfactory way. In the latter class of cases it may feel that the only reasonably practical way is to either leave it to the jury to assess the penalty within prescribed limits or to indicate in some appropriate way whether the case is more or less aggravated and so guide or limit the court to some extent as to the precise amount of the penalty. It would be perfectly competent in the case of libel to permit the jury to say in so many words whether the penalty should be imprisonment for not more than three months or fine not exceeding three hundred dollars, or imprisonment for not more than one year or fine not exceeding one thousand dollars. It would also be perfectly competent for the legislature to permit the jury to do this in substance by permitting it in form to find that the offense was more or less aggravated or that it was of a higher or lower or first or second degree. The only question is whether that is what was intended. It is a well established rule that statutes should be construed, if possible, so as to be constitutional and operative and so as to carry out the intention of the law-making body. In this case it is possible to construe the statute so as to make it effective and constitutional, namely, by construing it as an attempt to give to the jury the power, to a certain extent, of determining the amount of the penalty and making the punishment fit the crime according as the latter is deserving of greater or less punishment in the opinion of the jury. The statute contemplates “the offense of making, as also that of publishing a libel,” that is, one offense of making, as also one offense of publishing a libel, and then provides that each of these shall be of two degrees. It distinguishes between the offenses by a...