Territory Hawai`i v. Oshiro, 2824.

• Decision Date: 13 March 1952
• Docket Number: NO. 2824.,2824.
• Citation: 39 Haw. 303
• Parties: TERRITORY OF HAWAII v. DOJIRO OSHIRO.
• Court: Hawaii Supreme Court

39 Haw. 303

TERRITORY OF HAWAII

v.DOJIRO OSHIRO.

NO. 2824.

Supreme Court of the Territory of Hawai‘i.

Argued March 6, 1952.

Decided March 13, 1952.

ERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. E. A. TOWSE, JUDGE.

Syllabus by the Court

The purpose of punishment in criminal cases is twofold: (1) to prevent future crime by the defendant through education, reformation or detention and (2) to deter others from committing such crimes through fear of similar punishment and the latter is equally as important, if not more so, than the first.

A jail sentence for conviction of driving a motor vehicle while under the influence of intoxicating liquor is not in the opinion of this court “illegal or excessive” even though there is no injury to persons and slight damage to property.G. Nakamura ( Y. Fukushima on opening brief; Y. Fukushima and G. Nakamura on reply) for plaintiff in error.

J. H. Kamo, Assistant Public Prosecutor ( A. R. Hawkins, Public Prosecutor, with him on the brief), for defendant in error.

LE BARON AND STAINBACK, JJ., AND CIRCUIT JUDGE RICE, IN PLACE OF TOWSE, C. J., DISQUALIFIED.

OPINION OF THE COURT BY STAINBACK, J.

Defendant, plaintiff in error, was convicted by a jury in the circuit court of the first judicial circuit for the offense of driving an automobile while under the influence of intoxicating liquor; he was sentenced to imprisonment in the city and county jail for a period of thirty days and to pay a fine of five hundred dollars. His license was automatically revoked for a period of one year under section 7323, Revised Laws of Hawaii 1945.

There is no dispute as to the sufficiency of the evidence to sustain the conviction but the defendant claims error on the ground that the sentence was “excessive and disproportionate for the offense committed” and asks the court to exercise its power to reduce the sentence under the provisions of section 9564, Revised Laws of Hawaii 1945, which provides: “* * * In case of a conviction and sentence in a criminal case, if in its [the supreme court's] opinion the sentence is illegal or excessive it may correct the sentence to correspond with the verdict or finding or reduce the same, as the case may be. * * *”

It appears that defendant on Saturday, December 19, 1949, visited a friend who lived in Kaimuki, driving there sometime before eight o'clock p.m.; that, according to his testimony, after spending some forty minutes indulging in some two or three highballs, defendant left with his friend, driving his automobile towards town; near Thomas Square on Beretania Street he made a left turn into Piikoi Street for the purpose of having refreshments at a restaurant located near King Street on Piikoi Street; as defendant attempted to make a right turn into the driveway next to the restaurant he collided with a parked car owned by the complaining witness. The damage was not great and no one was injured. Defendant was taken to the emergency hospital and on examination by a physician was pronounced drunk. An analysis of his urine was found to contain 2.5 milligrams per cc. or .25 per cent of alcohol content.

Defendant was convicted on two previous occasions for failing to make a boulevard stop and had been fined twenty-five dollars on each occasion. Otherwise his record had been good.

There was no evidence prior to the sentence in the instant case to show anything regarding the defendant's financial status.

Counsel calls attention to a large number of local cases involving driving while under the influence of intoxicating liquor and states that only four individuals thus charged had drawn jail sentences and makes a very insistent argument that no jail sentence should be imposed in the present case. He quotes from the case of Territory v. Kunimoto, 37 Haw. 591, to the effect that “The legislature thus impliedly recognizes varying degrees of guilt or culpability for the offense and gives a trial judge a wide latitude in determining not only appropriate punishment for the protection of society and reformation of the offender, but also whether those interests would be better served by suspending the sentence thereof. However, the entire matter is one for the exercise of judicial discretion. But a trial judge in so doing must act upon the evidence and be governed by it. To inflict arbitrarily a punishment of greater severity than warranted by the evidence would amount to an abuse of discretion, constituting a judicial error of a highly prejudicial nature which fortunately may be rectified in the appellate court.” (Emphasis added.)

We agree with the foregoing statement of the law that the action of the trial judge, with its wide latitude in determining appropriate punishment for the protection of society and reformation of the offender, should not be disturbed unless it...