State v. Abellano , 50 Haw. 384 ( 1968 )

OPINION OF THE COURT BY

ABE, J.

The thirteen defendants-appellees were arrested on August 1, 1965 for violating section 13-3.1 of the Revised Ordinances of the City and County of Honolulu, 1961.¹ The State charged that defendants:

did engage or participate in, or were present at, a cockfight exhibition ....

Although they were formally charged with participating, apparently the defendants did no more than be present at a place where a cockfight was being held. A district magistrate granted the defendants’ motion to dismiss on the grounds that the ordinance is:

null and void as being in conflict with State statute [and] unconstitutionally and unreasonably infringes upon a person’s freedom of locomotion and movement.

The State appealed.

We affirm the dismissal. We do not reach the question whether state legislation in the area pre-empted the field.

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 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 (1926).

In determining whether the standard of being “present at” a cockfight is unconstitutionally vague, we are met at the outset with this court’s ruling in Territory v. Wong, 40 Haw. 257 (1953). There the court sustained against the claim of unconstitutional vagueness a statute which made it unlawful to be “present” where a gambling game was being played. The court construed the word present to mean intentional presence with knowledge that a gambling game was going on. It set out orbits of nearness and determined whether persons within each orbit were present as that term was used in the statute. While recognizing that the applicability of the statute remained dubious in many situations, it concluded that the statute as construed was not constitutionally defective for vagueness.

We overrule Territory v. Wong. The court went too far in attempting to sustain the statute. The judicial power to hold a legislative enactment unconstitutional should be exercised prudently and with restraint. But this does not mean that the legislature can avoid the constitutional mandate to state clearly the acts proscribed and then expect a court to narrow the overly broad terms it selected. The mere fact that marginal cases are conceivable does not, of course, justify a court in holding a statute unconstitutional. United States v. Harriss, 347 U.S. 612, 618 (1954); United States v. Petrillo, 332 U.S. 1, 7 (1947). Scrutinizing the Wong opinion convinces us that even the court’s ingenious construction of “present at” left more than marginal cases hanging in the balance.

John A. Radway, Jr., Deputy Prosecuting Attorney (John H. Peters, Prosecuting Attorney, and T. Irving Chang, Deputy Prosecuting Attorney, with him on the briefs) for plaintiff-appellant. John C. Lanham for defendants-appellees.

An ordinance or statute proscribing presence, whether at a cockfight, a gambling game, or a house of prostitution, is too vague to satisfy the requirements of due process. Primarily, the term presence has a spacio-physical frame of reference. Unless the activity at which presence is unlawful is in a narrowly confined place, determination of what constitutes presence at the activity can be resolved only on the basis of policy. Setting such policy is a legislative function. The legislative body has failed to make clear its policy determination. For this court to attempt to rewrite the ordinance to cure the constitutional defect would be an unconstitutional exercise of legislative power.

Affirmed.

1 Section 13-3.1 provides:

It shall be unlawful for any person to engage or participate in or to be present at, any cockfighting exhibition.