Territory Hawai`i v. Kaholokula
| Decision Date | 26 November 1947 |
| Docket Number | NO. 2657.,2657. |
| Citation | 37 Haw. 625 |
| Parties | TERRITORY OF HAWAII v. JOSEPH KAHOLOKULA ET AL. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
EXCEPTIONS FROM CIRCUIT COURT SECOND CIRCUIT, HON. C. A. WIRTZ, JUDGE.
Syllabus by the Court
The statutes of Hawaii creating the offenses of unlawful assembly and riot, neither in themselves nor as applied to appellants, abridge the right of free speech and assembly guaranteed by the First Amendment to the Constitution of the United States.
The statutes of Hawaii defining unlawful assembly and riot are sufficiently explicit in their description of the acts and conduct forbidden to prescribe the elements of the offenses with reasonable certainty to fix an ascertainable standard of guilt and to make known to those to whom they are addressed what conduct on their part will render them liable for their penalties.
Picketing, when lawfully exercised, does not come within the definition of riot or unlawful assembly as defined by statute.
Riot is a compound offense at common law and is made so by statute in Hawaii.
Riot is nonetheless an offense under the statutes, though no order to disperse, by proclamation or otherwise, has been given or made.
Under Revised Laws of Hawaii 1945, sections 11570, 11571, 11578 and 11579, three categories of riot are created, the respective concomitants of each of which are essential ingredients of the offense and must be alleged.
An indictment for riot from which is absent a description of the acts done or actually begun to be done in furtherance of the unlawful assembly is insufficient to characterize such acts as riotous as a matter of law and is fatally defective.
H. Bouslog (also on the briefs) for appellants.
W. F. Crockett, Deputy County Attorney, Maui County ( E. R. Bevins, County Attorney, with him on the briefs), for the Territory.
This is an indictment for riot and unlawful assembly. Appellants filed a demurrer or motion to quash. It was overruled and the ruling is here for review upon an interlocutory bill of exceptions.
The grounds of the demurrer or motion to quash challenging the sufficiency of the indictment are both general and special. Under the general ground “That the indictment and each count thereof fails to charge the defendants or any of them, with the commission of any crime,” appellants argue (a) that neither the riotous acts described in the indictment nor industrial disputes, affrays or ordinary breaches of the peace punishable under other provisions of law are within the prohibitions of the statutes defining riot or unlawful assembly; (b) that an order to disperse and refusal to do so is an essential element of the offense of unlawful assembly and riot, and in the absence of allegations to that effect the indictment is fatally defective; (c) that the indictment fails to allege that any persons named or unnamed intended to or were exercising rights and were prevented from doing so by the appellants; (d) that it affirmatively appears from the indictment that the appellants were participants in a labor dispute and that the riotous acts alleged therein amount to no more than picketing; (e) that the indictment fails to meet the requirements of the Sixth Article of the Amendments to the Constitution of the United States in that it fails to describe the alleged riotous acts, the menacing language used and the gestures and other hostile signs and demonstrations tending to strike terror into others.
Under the special grounds of the demurrer or motion to quash appellants urge (1) that the unlawful assembly and riot statutes of the Territory are, in themselves or as applied to the appellants, unconstitutional and void because they violate the right of free speech and assembly guaranteed by the First Amendment to the Constitution of the United States; (2) that the unlawful assembly and riot statutes of the Territory are vague and indefinite so that men of common intelligence must necessarily guess at their meaning and differ as to their application and hence violate the Fifth and Fourteenth Amendments to the Constitution; (3) that the unlawful assembly and riot statutes as applied to the appellants contravene substantive rights guaranteed by the Clayton and Norris–LaGuardia Acts.
The indictment contains three counts. The first two counts of the indictment, though differing slightly in form, are substantially the same. They allege an unlawful assembly and riot in the words of the statutes (R. L. H. 1945, §§ 11570, 11571), with the additional allegations of a common intent to riot and concert of action in furtherance of such intent. In both counts the riotous acts alleged are “assaulting,” “shoving” and “pushing.” The violence alleged is “menacing language,” “gestures,” and “other hostile signs and demonstrations tending to strike terror into others.” Count three of the indictment differs from the first and second counts in alleging that the appellants, at the same time and place, “did unlawfully and feloniously assemble together with intent to, and did, aid, countenance, incite and encourage each other, by conduct striking and tending and intending to strike terror into others, including certain employees of the Maui Agricultural Company, Limited, a Hawaiian Corporation [naming said employees], and others, to–wit, by disturbance, tumult and violence and menacing language and hostile signs and demonstrations, to prevent said employees from entering the premises of said corporation for the purpose of proceeding to the place of and engaging in their employment, thereby unlawfully depriving said [naming said employees] of their rights and endangering the liberty of the said [naming said employees].”
Revised Laws of Hawaii 1945, chapter 277, sections 11570 to 11584, both inclusive, are concerned with riots and unlawful assemblies. Section 11570 defines the term “unlawful assembly” as used in chapter 277, and section 11571 defines “riot.” Both sections are quoted in the margin.1 Sections 11572, 11573 and 11574 are explanatory of the statutory definitions of the offenses of unlawful assembly and riot. Section 11572 qualifies the word “violence” as used in the definition of unlawful assembly and riot; section 11573 the extent of the concurrence of intent necessary to constitute riot. Section 11574 negatives the necessity of the participants in an unlawful assembly or riot to have come together with a common or unlawful intent or in any unlawful manner or that the act done or intended to be done should of itself be unlawful, declaring that the tumult and violence tending to excite terror characterizes the offense though the participants may have assembled in a lawful manner and though the object of the meeting, if legally pursued, or the act done or intended, if performed in a proper manner, would be lawful. Section 11575 makes persons present at a riot or unlawful assembly and promoting the same or aiding, abetting, encouraging or countenancing the parties concerned therein by words, signs, acts or otherwise, parties thereto and principals therein. Section 11576 makes persons present but not personally participating in an unlawful assembly who voluntarily remain after the unlawful assembly has been ordered to disperse by anyone having legal authority so to do, except to keep the peace, parties concerned in unlawful assembly. Section 11577 creates a presumption of knowledge of the existence of an order of dispersal upon all persons present in an unlawful assembly. Sections 11578 and 11579 fix the penalties for persons found guilty of unlawful assembly or riot. These sections are quoted in the margin.2 The provisions of section 11580 make it possible for a jury upon indictment for riot or unlawful assembly, as described in section 11579, to bring in a verdict of guilty of any offense mentioned in section 11578. This section is quoted in the margin.3 Sections 11581, 11582, 11583 and 11584 are directed to the dispersion of riots and unlawful assemblies. Section 11581 imposes the duty upon magistrates and certain police officers to disperse unlawful assemblies and riots and confers upon them the power to command the assistance of bystanders to seize and arrest the offenders. This section is quoted in the margin.4 Section 11582 confers upon any two of the officers named the power to call to their aid a posse comitatus. Section 11583 imposes obedience by the posse comitatus to the orders of any two of the police officers while en route to the place of unlawful assembly or riot and, after they arrive, to such orders as may be given by any two of the magistrates or such officers. Section 11584 grants immunity from criminal prosecution to magistrates and officers and to all persons acting under their direction where their efforts to disperse and arrest offenders result in injury to the latter or to persons present as spectators or otherwise and makes the offenders and all persons present who have refused to assist in quelling the unlawful assembly or riot answerable for death or injury occasioned such magistrates or officers.
If, as urged by appellants under their special grounds of demurrer, the statutes of Hawaii defining unlawful assembly and riot are unconstitutional or contravene substantive rights guaranteed by controlling laws of the Congress of the United States, these statutes would be void and unenforceable and any indictment predicated thereon would be of no legal force or effect. Hence, we consider it our first and primary duty to dispose of these special grounds of demurrer. This we do in the order advanced.
1. We fail to see wherein or how the statutory prohibition against riot, either in itself or as applied to these appellants, abridges the rights of freedom of speech or peaceable assembly guaranteed by the First Amendment to the Constitution of the United States. Neither unlawful assembly nor riot, as defined by our...
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