Territory of Hawaii v. Gora
| Decision Date | 14 September 1944 |
| Docket Number | 2547,2548. |
| Citation | 37 Haw. 1 |
| Parties | TERRITORY OF HAWAII v. KOA GORA. |
| Court | Hawaii Supreme Court |
Submitted August 25, 1944.
ERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. A. M. CRISTY, JUDGE.
Syllabus by the Court
Where the words " lascivious conduct" are unqualifiedly employed to describe the statutory offense and have a well-defined meaning without a special sense at common law there is no need or reason to draw on the common law to determine legislative intent.
Elements essential to misdemeanor of lascivious conduct created by statute as offense against laws of Territory do not include a public performance toward a person of the opposite sex and hence such performance need not be charged to confer jurisdiction or proved to establish guilt.
E J. Botts and F. Patterson for plaintiff in error.
W Z. Fairbanks, Public Prosecutor, and J. E Parks, Assistant Public Prosecutor for the Territory.
The defendant in the circuit court on appeal from the district court was tried, jury waived, and found guilty of two offenses: lascivious conduct and selling intoxicating liquor without a license. The cases were consolidated for trial and the instant writs are combined for appellate review.
The assignments of error upon which the defendant relies attack the sufficiency of the charges made in the circuit court by alleging that neither charge informed the defendant with adequate particularity of the " nature and cause of the accusation" as required by the Sixth Amendment of the Constitution, thereby failing to safeguard him against being " twice put in jeopardy" as provided by the Fifth Amendment; further, that neither stated " an offense against the laws of the Territory."
At the outset it must be noted that the defendant did not include or describe the assailed charges in his assignments and that the record does not disclose them. Hence his assignments, dealing exclusively with their form and substance, are incomplete and present no precise point of law. However, any failure to qualify as an assignment of error within the meaning of Revised Laws of Hawaii 1935, section 3557 (see Zen v. Koon Chan, 27 Haw. 369; Territory v. Yoon, 36 Haw. 550) is not raised by the Territory. Its theory, as well as that of the defendant, is that charges were read in the circuit court from the district magistrate's notice and certificate of appeal. Consequently, while not condoning the loose practice suggested thereby, this court in the absence of anything to the contrary adopts the theory of counsel that such occurred, rather than sua sponte refuse to consider the assignments upon the theory that other charges from newly entered informations were made in accordance with the better practice. The charges, thus taken to be the subject of the assignments, read as follows: (1) " That KOA GORA, at Honolulu, City and County of Honolulu, Territory of Hawaii, on the 6th day of July, A.D. 1943, did do that which was lewd and lascivious in conduct, contrary to Section 6253 of the Revised Laws of Hawaii, 1935, " and (2) " That KOA GORA, at Honolulu, City and County of Honolulu, Territory of Hawaii, on the 6th day of July, A.D. 1943, did wilfully and unlawfully sell one pint bottle of intoxicating liquor without first having obtained a license so to do, and did then and there and thereby violate the provisions of Section 2630 of Chapter 82 of the Revised Laws of Hawaii, 1935."
Regarding the first charge, the defendant claims that the statutory prohibition against " lascivious conduct" invokes the offense as it was known to the common law, the conception of which he maintains limited the offense to a public demonstration toward a person of the opposite sex. Upon such a premise the defendant assigns as error the trial judge's finding of guilt in that the charge by not setting out these limitations either omitted essential elements of the offense charged or did not state an offense against the laws of the Territory, and further, granting the charge to be sufficient, the evidence did not prove an offense in that the proof was directed toward acts which involved a person of his own sex and were not committed in a public place. In short, the defendant attempts to posit the efficacy of his contention upon the familiar rule that where one of our statutes (there being no common-law crimes in this jurisdiction) provides punishment for an act which would be a crime at common law and describes that act in general terms, resort may be had to the common law to ascertain the meaning of the statute. (See Territory v. Scully, 22 Haw. 618.)
At common law the offense of lascivious conduct was that of a common nuisance where " all scandalous and open breaches of morality exhibited in the face of the people" were indictable. (1 East's Pl. Cr., c. 1, § 1, p. 3; see Sedley's case, 1 Sid. 168; conf., R. v. Crunden, 2 Camp. 89, Hawkins' Pl. Cr., Curwood's ed. bk. 1, c. 26, p. 358.) So at common law in order to charge and establish the offense it was necessary to show an affront against the decency and morality of the public rather than an injury to but one person. This was accomplished by pleading and proving a behavior committed in an open and public place in the presence of divers persons. (See Regina v. Watson, 2 Cox's Cr. L. Cas. 376; Regina v. Webb, 1 Den. 338 [169 Eng. Rep. R. 271]; Commonwealth v. Wardell, 128 Mass. 52.)
In contradistinction, section 6253 of the Revised Laws of Hawaii 1935 (Penal Code 1850, c. XIII, § 6), contains no import whatsoever of a publicly committed crime and none of the requirements of the charge at common law. It simply makes punishable " Any man or woman who is guilty of lewd conversation, lascivious conduct, or libidinous solicitations, " without regard to whether such was...
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