State v. Johnston , 51 Haw. 195 ( 1969 )

OPINION OP THE COURT BY

ABE, .T.

Defendants in the two cases were charged with the crime of lewdness for having masturbated in public restrooms in violation of HRS § 768-52(2).

In No. 4714, defendant Fuller was first tried in the District Court of Honolulu and was found guilty and sentenced to pay a fine of ¡§25.00. Defendant perfected an appeal to the Circuit Court of the First Circuit demanding a trial by jury.

In both cases at the trials, before the jury was impaneled, defendants challenged the jury array on the ground that the three-year residential requirement for a citizen of the State to serve on the jury was unconstitutional. This motion was denied by the court without argument.

The jury was impaneled and after the trials, in both cases, the jury returned verdicts of guilty and judgments were entered accordingly. Defendants appealed.

I.

The first specification of error in No. 4714 is that § 768-52 (2) as interpreted and enforced in that case makes the statute void for vagueness. Defendant is not attacking the constitutionality of the statute but his contention is that because the detectives who testified for the State did not give the same testimony in the district court and the circuit court, the offense of lewdness depends upon the “opinion” of the arresting officers which may change from “moment to moment” and therefore the law as enforced in this case is unconstitutional.

In essence, defendant by his first specification of error is questioning the credibility of the witnesses or the weight of evidence. This court has held in numerous cases that the jury is the sole judge of the credibility of the witnesses or the weight of evidence. State v. Kekaualua, 50 Haw. 130, 433 P.2d 131 (1967); State v. Carvelo, 45 Haw. 16, 361 P.2d 45 (1961).

We also stated in State v. Kekaualua, supra, at 132: “[w]hen a jury verdict involves conflicting evidence and depends on the determination of credibility of witnesses or the weight of evidence, the test on appeal is whether there is substantial evidence to support the verdict of the jury.” See also, Territory v. Ebarra, 39 Haw. 488, 492 (1952); Territory v. Gagarin, 36 Haw. 1, 5 (1941).

The record shows that there was substantial evidence to support a guilty verdict against defendant.

Therefore, we find no merit in the first specification of error.

II.

In both cases the basic issue is the constitutionality of the three-year residential qualification for jurors of this State.

This issue raises a very serious and interesting question and for its determination we believe a brief review of the history of trial by jury may be helpful.

“The theory of the early trial by jury, as of the earlier recognition from which it sprung, was that the jurors were required to come from the vicinage or neighborhood and. declare their vere dictum on their oaths and of their knowledge * * *.

“By the time of Henry VI (1422-1461) the separation of jurors and witnesses is complete, but the idea that jurors must come from the neighborhood and not be wholly strangers to the fact, and that they could disregard the sworn testimony of witnesses in arriving at their verdict, persisted in England as late as 1816.”¹

“It nevertheless appears that the functions, of the ancient and modern juries are distinct, in that the former, in most instances, were merely compurgators, deciding on their own knowledge while the latter are judges of facts, deciding evidence; yet the two are connected by the tribunal of mixed function, which decided on its own knowledge, assisted by the testimony of witnesses; and from all of these came the jury, as now existing, which decides exclusively on the evidence presented before him. Just when and precisely how these changes came to pass, as before-said, are points which none of the students of the subject seem able to tell us much about.”²

It is to be noted that provisions in both the United States Constitution and the Constitution of the State of Hawaii require that in all criminal prosecution the accused shall be tried by an impartial jury of the state and district wherein the crime was committed.³

The reason given for the rule requiring a jury to be from the vicinage or district, and which unquestionably weighed in its development, is that the accused shall have the benefit on his trial of his own good character and standing with his neighbors if he had preserved them and also of such knowledge as the jury may possess of the witnesses who may give evidence against him. State v. Bunker, 38 Kan. 741, 17 P. 651 (1888). Another reason sometimes given is that the provision insures a person charged with a crime from being transported to a distant site for trial, where he cannot have the benefit of the presence of his witnesses and of having their statements weighed by jurors who are generally acquainted with them. Oborn v. State, 143 Wis. 249, 126 N.W. 737 (1910); Zanone v. State, 97 Tenn. 101, 36 S.W. 711 (1896); State v. O’Brien, 35 Mont. 482, 90 P. 514 (1907).

It is general law that when a defendant is tried by a jury impaneled in a county or jurisdiction other than the county or jurisdiction wherein the crime was committed, his constitutional right to be tried by an impartial jury of the district or jurisdiction wherein the crime was committed is violated. Althoff v. Indiana, 209 Ind. 42, 197 N.E. 896 (1935); Commonwealth v. Jones, 118 Ky. 889, 82 S.W. 643 (1904).

This being the law, a criterion must be set to meet this constitutional requirement, and the State legislature is the proper body to determine such criterion.

In discharge of its function, the Hawaiian legislature enacted HRS § 609-1 which provides as one of the qualifications of a juror that he must have resided in the State of Hawaii for not less than three years.⁴

It is of interest to note that the Congress of the United States discharged the function with regard to jurors in federal courts. In 1957 by Pub. L. 85-315, it amended the statute on qualifications of federal jurors by providing that to qualify as a juror one must have “resided for a period of one year within the judicial district”⁵ in place of the former requirement that one must have “resided within the judicial district.”

A. PRIVILEGES AND IMMUNITIES CLAUSE

One of defendants’ contention is that the three-year residential qualification for jurors violates the privileges and immunities clause of the Fourteenth Amendment.

The Fourteenth Amendment, Section 1, provides:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States * *

In Presser v. Illinois, 116 U.S. 252 (1886), at page 266 the court, in interpreting the privileges and immunities clause of the Fourteenth Amendment, stated:

“It is only the privileges and immunities of citizens of the United States that the clause relied on was intended to protect. A State may pass laws to regulate the privileges and immunities of its own citizens, provided that in so doing it does not abridge their privileges and immunities as citizens of the United States.”

The Supreme Court of Utah in Steed v. Harvey, 18 Utah 367, 54 P. 1011 (1898), at page 1012 said:

“There are privileges, however, which states give only to their own citizens, — rights which they will not permit citizens of other states to acquire and possess, —such as the election franchise, the right to sit upon juries, and the right to hold public office. These rights they make dependent on citizenship. If a sovereignty were to intrust the elective franchise to the citizens of another state only in part, it would not rest upon the will of its own citizens; or if a state were to permit its offices to be filled, and their functions to be exercised, by citizens of other states, its citizens, to that extent, would not enjoy the right of self-government. Such rights and privileges are not contemplated by the words ‘privileges and immunities,’ used in the constitutional provisions above quoted. * * *” (Emphasis added.)

The privilege to serve as a juror in the courts of Hawaii belongs to one as a citizen of the State of Hawaii and not as a citizen of the United States. Steed v. Harvey, 18 Utah 367, 54 P. 1011 (1898); State v. Hall, 187 So.2d 861 (Miss. 1966). Thus, the statute does not violate the privileges and immunities clause.

B. EQUAL PROTECTION AND DUE PROCESS CLAUSES

Defendants also contend that the three-year residential qualifications for jurors violates the equal protection and due process clauses of the Constitutions of the United States and the State of Hawaii.

The general principle stated by the courts in the interpretation of the equal protection clause is that all persons shall be treated alike under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed. Commonwealth v. Life Assurance Co. of Pa., 419 Pa. 370, 214 A.2d 209 (1965); Morey v. Doud, 354 U.S. 457 (1957); Hartford Steam Boiler Inspection and Insurance Co. v. Harrison, 301 U.S. 459 (1937).

The United States Supreme Court in Stebbins v. Riley, 268 U.S. 137 (1925), at page 142 said:

“The guarantee of the Fourteenth Amendment of the equal protection of the laws is not a guarantee of equality of operation or application of state legislation upon all citizens of a state. As was said in Magoun v. Illinois Trust and Savings Bank [170 U.S. 283] at page 293:

‘It only prescribes that that law have the attribute of equality of operation, and equality of operation does not mean indiscriminate operation on persons merely as such, but on persons according to their relations. In some circumstances it may not tax A more than B, but if A be of a different trade or profession than B, it may. * * * In other words, the State may distinguish, select and classify objects of legislation, and necessarily this power must have a wide range of discretion.’ ”

Also in New York Rapid Transit Corp. v. City of New York, 303 U.S. 573 (1938), at page 578 the Court said:

“I. Glassification. No question is or could be made by the Corporation as to the right of a state, or a municipality with properly delegated powers, to enact laws or ordinances, based on reasonable classification of the objects of the legislation or of the persons -whom it affects. ‘Equal protection’ does not prohibit this. Although the wide discretion as to classification retained by a legislature, often results in narrow distinctions, these distinctions, if reasonably related to the object of the legislation, are sufficient to justify the classification. * * * Indeed, it has long been the law under the 14th Amendment that ‘a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it, ...’** * ‘The rule of equality permits many practical inequalities.’ * * * ‘What satisfied this equality has not been and probably never can be precisely defined.’ * * *”

Thus, what is prohibited by the equal protection guaranty is class legislation, discriminating against some and favoring others. The guaranty was not intended to take from the states the right and power to classify the subjects of legislation, provided such classification of persons and things is reasonable for the purpose of legislation.

The United States Supreme Court has held in numerous cases that intentional exclusion of persons from a jury list solely because of their racial or ethnic background is denial of the equal protection guaranty. Swain v. Alabama, 380 U.S. 202 (1965); Hernandez v. Texas, 347 U.S. 475 (1954). If the statute in question purported to exclude persons from the jury because of racial or ethnic background, we would without any hesitation hold such statute to be unconstitutional.

Defendants argue that the statute is unconstitutional and void, without submitting any evidence, or even offering to present evidence to prove that the three-year residential qualification is unreasonable. They have called our attention to two other statutes prescribing similar requirements, one for governmental employees⁶ and the other for employees of public utilities,⁷ and argue that these statutes set up two different classes of people' — “malihini,” newcomer, and “kamaaina,” oldtimer. They argue that the statute on jurors subjects a “malihini” to be tried by a jury composed only of “kamaainas” and defendants are thereby denied equal protection guaranty and due process of law. However, no evidence was introduced nor offer of proof made by defendants to show existence of discrimination or prejudice against “malihinis.”

In Hernandez v. Texas, 347 U.S. 475 (1954), the United States Supreme Court said at page 478:

“Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. * * *”

In Commonwealth v. Slaney, 350 Mass. 400, 215 N.E.2d 177 (1966), defendant was 25 years of age when he was indicted and he contended that a statute excluding qualified voters between the ages of 21 and 25 years to be unconstitutional discrimination and a denial of equal protection of the laws. The Court in upholding the constitutionality of the statute said at page 179:

“It is not enough merely to aver unconstitutional discrimination. When challenging the composition of a jury, the defendant has the burden of proving (Akins v. State of Texas, 325 U.S. 398, 400, 65 S. Ct. 1276, 89 L. Ed. 1692) that the absence of a certain class from a jury list resulted from an ‘arbitrary and systematic’ policy of exclusion, Hoyt v. State of Florida, 368 U.S. 57, 59, 82 S. Ot. 159, 7 L. Ed.2d 118, directed against an ‘identifiable group in the community which may be the subject of prejudice.’ Swain v. State of Alabama, 380 U.S. 202, 205, 85 S. Ct. 824, 827, 13 L. Ed.2d 759.

“Slaney failed to meet the standards of proof required. His counsel’s affidavit was again the only support offered to prove an exclusion. He asserted but did not prove the absence of persons under twenty-five. Conceding, arguendo, the truth of the assertion, we do not think that the allegedly excluded class is the kind contemplated by the Swain and other cases which involved racial or political bases of discrimination. Further, even assuming that persons under twenty-five indeed constitute such a group, the record fails to demonstrate that their exclusion resulted from a systematic policy rooted in prejudice.” See also Britton v. Bullen, 275 F. Supp. 756 (D.C. Md. 1967), upholding a similar Maryland statute.

Defendants in the two cases not only failed to prove but also failed to make any offer of proof that exclusion from the jury list of qualified voters who had resided in Hawaii for a period of less than three years is an invidious discrimination.

We believe that the statement of the United States Supreme Court in Allied Stores of Ohio v. Bowers, 358 U.S. 522 (1959) at page 528 is very appropriate:

“[I]t has long been settled that a classification though discriminatory, is not arbitrary nor violative of the Equal Protection Clause of the Fourteenth Amendment if any state of facts reasonably can be conceived that would sustain it. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78; Quon Wing v. Kirkendall, 223 U.S. 59; Rast v. Van Demon & Lewis Co., 240 U.S. 342, 357; State Board of Tax Comm’rs v. Jackson, 283 U.S. at 537.”

In reporting on the bill to enact the three-year residential requirement for jurors, the Judiciary Committee of the House of Representatives said in its report: “the fact that it requires more than one year to understand the customs and ways of our people here and to get an insight to their living conditions, your Committee feels that the three year requirement is a good one.”⁸ Nothing in the report suggests that the legislature was motivated by racial or ethnic consideration in enacting the bill into law. On the contrary, the report indicates that the motive was reasonable and legitimate, to assure fair jury trial to citizens and residents of this State. The legislature decided and it is not for us to question the appropriateness or soundness of the residential requirement, nor to question its wisdom in enacting the statute. Railway Express Agency, Inc. v. New York, 336 U.S. 106 (1949); Olsen v. Nebraska, 313 U.S. 236 (1941).

The general law is that one who assails the constitutionality of a classification has the burden of proving that it does not rest upon reasonable basis and that it is an invidious discrimination because laws are presumed to be constitutional, and all doubts on this point are resolved in favor of and not against it. Hernandez v. Texas, 347 U.S. 475 (1954); Corporation Commission v. Lowe, 281 U.S. 431 (1930); Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911).

In State v. Diamond Motors, Inc., 50 Haw. 33, 429 P.2d 825 (1967) at page 38, we said:

“The burden is upon the appellants to show that the limitations and classifications are unreasonable. State v. Safeway Stores, Inc., 106 Mont. 182, 76 P.2d 81. The record does not so show. * * * It was incumbent on them in invoking the protection of the Fourteenth Amendment To show with convincing clarity’ that the ordinance created against them the discrimination of which they complain. Corporation Comm'n v. Lowe, 281 U.S. 431, 74 L. Ed. 945, 50 S. Ct. 397. They have not done so.”

The defendants, it seems, are contending that they have met this burden by merely averring that the statute is unconstitutional because the statute does not treat all the citizens or residents of Hawaii equally. We recognize that the statute does not apply equally upon all of our citizens; however, this fact alone does not prove that the three-year residential qualification is an invidious discrimination and therefore unconstitutional.

Under the records of the cases, we hold that defendants have failed to prove that the three-year residential qualification is an invidious discrimination or even that it is an unreasonable classification. Thus, we hold that the statute is constitutional and that defendants were tried by legally constituted impartial juries within the meaning of the provisions of Article VI (Amendment), United States Constitution and Article I, Section 11, Hawaii State Constitution. We have no doubt that a trial by an impartial jury so constituted fulfills the due process requirement.⁹ Rapid Transit Corp. v. New York, 303 U.S. 573, 587 (1938).

Joseph A. Ryan {Ryan and Ryan of counsel) for defendants-appellants. Dennis A. Ing, Deputy Prosecuting Attorney, City and County of Honolulu (John H. Peters, Prosecuting Attorney, with him on the briefs), for plaintiff-appellee.

The judgments are affirmed.

1 I, Busch, Law and Tactics in Jury Trial, 10 (1879).

2 R. von Moschzisker, The Historic Origin of Trial by Jury, 70 U. Pa. L. Rev. 170 (1921).

3 See Article VI (Amendment) U.S. Constitution and Article I, Section 11, Constitution of the State of Hawaii.

4 HRS § 609-1 reads:

Ҥ 609-1. Qualifications. A person is qualified to act as a juror or grand juror:

(1) If he is a citizen of the United States, and of the State, of the age of twenty years or over; possesses the qualifications for registration as a voter; has resided in the State for not less than three years; is a resident of the circuit from which he is selected; and

(2) If he is in possession of his natural faculties and not decrepit ; and

(3) If he is intelligent, and of good character; and

(4) If he can understandably speak, read and write the English language; and

(5) If he is selected, summoned, returned and sworn without reference to race, or place of nativity.”

5 28 U.S.C., ch. 121, § 1861.

6 HRS § 78-1.

7 HRS § 70-1.

8 1945 House Journal, 645.

9 It appears that the basis of the dissenting opinion is that the “impartial jury” requirement of the Sixth Amendment directs that the jury represent a cross-section of the community and the statute is unconstitutional because the three-year residential qualification precludes citizens who do not meet this requirement from jury service.

It justifies the disqualification of citizens between the ages of 21 and 25 years on the ground that such exclusion does not impair representativeness. Also, exclusions based on occupational classes, e.g., lawyers, doctors and ministers, are justified as being based “on the bona-fide ground that it is for the good of the community that their work not be interrupted.”

Where classes of citizens are excluded from jury service, whether it be on grounds of residence, age, occupation, illiteracy, etc., it would mean that the excluded classes of citizens will not be represented on the jury. Thus, to that extent, the jury will not represent a cross-section of a community. However, the issue is not whether a certain class of citizen is disqualified, but whether the classification which brings this result is reasonable.

1 Estimated as of July 1.

2 Years ended June 30. Excludes arrivals by MATS (MAC) and. MSTS.

3 Excludes military personnel and dependents and persons not reporting military status.

1 Classified by military status at time of survey.

1 Includes 5,464 persons who moved but for whom place of residence in 1955 was not reported.

1 Excludes military personnel and dependents and persons not reporting military status.

1 U.S. Census of Population: 1960, General Population Characteristics, United States Summary. Final Report PC(1)-1B, Table 56, p. 1-164.

2 Hawaii’s Im-Migrants 1967, DPED Statistical Report 55, Table 8 (1968) “Civilian” excludes military personnel and dependents and persons not reporting status.

3 Based on 1960 population distribution, given above Note 1.

1 Excludes 2,581 not reporting race.

2 Includes data for 19,255 military personnel and their dependents and 1,370 not reporting military status. Among the 17,530 other migrants, 91.3 percent were Caucasian, 6.8 percent were Negro, and 1.9 percent were from other groups.

3 Includes Puerto Bican.

4 Not reported separately; combined total was 506, or 1.4 percent.

5 Includes Hawaiian, Samoan, Korean, and persons of mixed blood.

1 Includes persons who lived abroad in 1955 and persons who moved but for whom place of residence in 1955 was not reported.

.1 Includes household heads not reporting migration status.

2 Refers to head of household.

3 For renter occupied dwelling units, except rent-free.