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10 THE PACIFIC COMMERCIAL ADVERTISER, HONOLULU, MAY S7, HWt IN THE SUPREME COURT OF THE TERRITORY OF HAWAII. Masch Term, 1901. FUGIHARA ORIEMON p. THE TERRITORY OF HA WAII. Ebroe to CiRCcrr Court, Fourth Cirotjit. Submitted March 29, 1901. Decided May 23, 1901. Frrar, C.J., Galbraith and Perry, J J. L Objections to the manner of drawing and empanneling the grand jrr returning an indictment must be presented and urged to the court at the first opportunity, or they will be deemed waived. 2. Every presumption is in favor of the regularity of the proceedings of the trial court. When the record is silent as to the manner of drawing the grand jury this court will presume that it was reg ularly and properly drawn. 3. The time and place of execution are by law no part of the judgment. There is no statute in this Territory authorizing the court in pro nouncing the death sentence to name the place and day of execu tion. 4. Where the court in pronouncing the death sentence names the place and day of execution the sentence is not thereby rendered void. That part of the sentence in excess of the authority of the court being separable from the legal part may be stricken out or the prisoner may be taken before the court and resentenced. OPINION OF THE COURT BY GALBRAITH, J. At the July, 1900, term of the Circuit Court of the Fourth Circuit, the plaintiff in error was conVieted of the crime of mur der in the first degree, and was sentenced to suffer the death penalty in the manner provided by law, on the 21st day of September, 1900. A writ of habeas corpus was sued out from this court in his behalf and a stay of execution granted. After hearing and argument, at the September term, the writ was denied and the prisoner remanded (13 Haw. 102). A writ of error was then issued and the cause stood for hearing at the December term of this court. By stipulation entered into be tween the Attorney-General and the attorney for the petitioner the cause was continued and came on for hearing at the March, 1901, term. At the March term a motion was presented and argued asking leave to file a supplemental petition in error. This motion was denied by oral opinion announced during the term. The cause was then argued and submitted on the record sent up by the clerk of the Circuit Court of the Fourth Circuit in return to the writ. The office of a writ of error as defined by our statute is: "A writ of error may be had to correct any error appearing on the record, either of law or fact, or for any cause which might be assigned as error at common law; provided, however, that no writ of error shall issue for any defect of form merely in any declaration, nor for any matter held for the benefit of the plain tiff in error." Civil Laws 1897, Sec. 1445. Sec. 1446. "For all purposes of this Act the record shall be deemed to include all pleadings, motions, notes or bills of excep tions, exhibits, clerk's or magistrate's notes of proceedings, and if so desired by the plaintiff in error a transcript of the evidence in the case." j ... The record before us consists of the indictment, the verdict, motion for a new trial, motion in arrest of judgment and the clerk's minutes of the proceedings in the case. The instructions asked and refused and those given by the Court, the sten ographer's notes of the evidence and objections, if any were made, to the manner of drawing and empanelling the grand jury and objections to the petit jury might have been made part of the record if proper steps had been taken on behalf of the peti tioner. The petitioner enumerates seventeen assignments of error in his petition for the writ. At the oral argument and in the brief he argues only three alleged errors and only two of these are included in the original assignment, and only one of the errors argued finds support in the record. This court cannot be expected to wander out into the realms of imagination in search for visionary errors or to presume that errors might have occurred in the course of the trial. Every presumption that a court may rightfully entertain in a criminal cause is in favor of the record and the regularity of the pro ceedings of the trial court. The duty is incumbent on the peti tioner alleging error to make the same manifest by bringing the record before the appellate court so as to disclose either that the things (Complained of were not done in the manner provided by law or were done in a manner prejudicial to the rights of the petitioner. We cannot presume error in the absence of the record. The court had a right to expect when the writ was granted that petitioner would at least bring all of the record of the trial court before us or show good cause for not doing it. He has done neither. "We will examine the record before us and the assignments supported thereby. The assignments argued are: 1. That the grand jury returning the indictment against petitioner was not drawn in the manner provided by law and was therefore an illegal body. 2. That the judgment and sentence of the court fixed the date of execution contrary to law and is void. 3. That the stenographer did not transcribe and file the judge's charge to the jury within ten days after the trial and that for this reason the petitioner is entitled to a new trial as a matter of right. This last is not included in the original assignment of errors and cannot now be considered in view of the decision on the motion to file supplemental petition in error. It is contended for the petitioner that "in the very beginning we are apprised of the fact that the grand jury which found and presented the alleged indictment upon which the petitioner in error was tried, convicted and sentenced, was summoned days after the opening day of the term of the court in which he was tried, while the Organic Act (Sec. 83) provides that they may (shall) be drawn in the manner provided by the Hawaiian stat utes for drawing petty jurors." Counsel neglects to point out in wh8t part of the record we are apprised of the fact of the time when or the manner in which the grand jury that returned the indictment against the petitioner was drawn. We have searched the record in vain for this information. The general rule is that "the formalities for the selection, organization, and doings of the grand jury are things separable from the judicial jurisdiction and other like fundamentals; so that defendants can waive irregularities therein, and they do waive any one whereof they have knowledge if they fail to object thereto promptly, or at the first step in the cause permis sible." Bishop New C. P. Vol. 1, Sec. 872. The record does not disclose that the defendant sought to avail himself of any possible irregularity in the drawing of the grand jury or the competency of any of its members prior to the commencement of the proceedings in this court. Under the above rule he cer tainly waived any rights he may have had to urge this objection at this time. In the absence of any showing to the contrary in the record, we are bound to assume that the Circuit Court of the Fourth Circuit pursued a lawful method in providing a grand jury for the July, 1900, term. . The next objection is to the form of the sentence. That the court exceeded its jurisdiction in fixing the time of the execu tion and that for that reason the entire sentence and judgment is void. The only record of the sentence now before us is that con tained in the clerk's minutes, and these show that on motion of the deputy attorney-general for sentence of Fugihara Orie mon, the court sentenced the defendant directing that he be taken to the Hilo jail, town of Hilo, Island of Hawaii, and Ter ritory of Hawaii, and within the jurisdiction of the court, and "from thence to the place of execution within the enclosed yard of said jail, and that on Friday the 21st day of September, A. D. 1900, between the hours of 10 o'clock in the forenoon and 3 o'clock in the afternoon of said day," he, the said defendant then and there suffer the punishment of death by being hung by the neck until dead. The provisions of the criminal code pertinent to the question are Sec. 37, defining the crime of murder and providing that it shall be of two degrees, the first and second, to be found by the jury, and Sec. 41, which prescribes the death penalty for murder in the first degree, and Sec. 682, which reads: "The verdict of the jury or the decision of the court, as the case may be, shall, subject to arrest of judgment, found the sentence to be passed in open court, by either of the justices, pursuant to the penalties of the law charged and found to have been violated, subject to the executive clemency, or a motion in arrest of execution for cause." Sec. 685. "In all cases where the law of this Republic awards the punishment of death, there shall always intervene at least forty-eight hours between the conviction and the sentence; and at least fourteen days between the sentence and the execution." And Sec. 686. "The marshal, or some one deputed by him, shall inflict the punishment of death, by hanging the criminal by the neck until dead, when tie body shall be disposed of pursu ant to the direction of the court. No capital punishment shall be so inflicted until the warrant for that purpose shall be signed by the President; nor shall such punishment be inflicted after the President's pardon." The words "high sheriff" should be substituted in Sec. 686 for the word "marshal," and "Governor" for the word "President" in the latter part of the section and the word "Territory" for "Republia" in Sec. 685. (Organic Act, Sees. 8 and 9.) At the common law the time and place of execution were no part of the judgment, and it was not the practice to insert either in the sentence. IV Blackstone p. 404; Rex v. Doyle, 1 Leach C. C. 67. In most instances it was left with the sheriff "to do execution within a convenient time." IV Blackstone, p. 404; Bishop's Crim. Proc. Vol. 1, Sees. 1311 and 1336. "The day on which death or other corporal pain is to be in flicted need not be inserted in the judgment. If it is not, it may be in the warrant; or if it is in the judgment, and execution fails on that day, as where the sheriff dies, or the prisoner escapes, then is retaken, the court may direct it to be done on a subse quent day." Bishop, New Crim. Law, Vol. 1, Sec. 951. This question is now regulated by statute in England and most of the States of the Union. Here, however, we have no statute on the subject other than that contained in Sec. 682, i. e., that forty-eight hours shall intervene between conviction and sentence and at least fourteei days between the sentence and the excution. It seems that the Circuit Judge in naming the place and day of execution in the sentence followed the established practice in this jurisdiction. Now for the first time the correctness of the practice has been questioned. It i3 insisted that the court having fixed the date of execution in the sentence the entire sentence is thereby rendered void. The case of Loicenberg v. The People, 27 N. TT. 336, is relied -iM UX1 I" .UIHHL LlilS lir.ntiv. Hi- 11 -""hiihuii, Q , inn. u m Ltu as is rimmoH . , uttt; contention that the court had no authors 1 ecution in the sentence and that that cess of the authority of the court is that part of the judgment and sentence''3 court to render provided that the lal ' from the illegal. The part 0f theL!! authority of the judge is easilv bmm. , 15 the sentence, and if it were necessary tin- illegal part- stricken from fhn w " H Sec. 1456, Civil Laws, 1897; t(u . n 477: (lardcs v. 77. St. ST va n . ' ! 153 U. S., 48; The People BmUk 33 t, v. Poloaiea, 13 naw. 335. ' The statute aut.lmrizprl inA ,i.. .. . --- "mm u the dm. j to nrononncf rhft nif (rmm.t oj " e " "iU sentence of theU r ... vximt- ui wincn lie had been f y J UIiU wuiret that the peaA, be inflicted in the manner provided bv tKa - . mi . -uaJlSisft ine statute makes it the duty of the high sheni w v.,. .ic sji. tue court butprovij y .4- Vv Xi iL 3 .1 nvo ue uuui itii-r me aeath warrant has 1 Governor. The same duty rests ttpon the Govern death warrant as does upon the court to pronom llTlvn t 1 1 In rtln eliflinff x .1 ufuu ut"" cAecuie tin same j wiui uie suggestion uuu tne Uovernor might prevai oy simpjy reiusing to issue the i eati warn ft within his rifrht. tji nmnml 0.. x cAcuuuon monenT that is bv the exercise of ihp r "6 4(T. It l tne intention in requiring the issuing of the d4 give an uppuitunii aim maKe it the dutv of (J investigate all cases of capital punishment so that power would be exercised in all proper cases. In the absence of statutory provision relative toil nlflcp of exeent.ioii it wm thof .v, 1 jj - iuc summon is? ii prevail and that the time and the place of execution left to the high aherift "to do execution fcfeg time." 1 rA, , kjkj xai as iui; nxum cu Hie 1 11011011 IOr heff I in arrest of judgment were properly denied. The clerk's minutes show that the petitioner J on the 10th day of July, 1900, on an indictment 1 grand jury charging him with murder in the first dM March 25th, 1900, in the district of Haraabia, Ta Hawaii, he did wilfully and, with malice aforetioaj J Ctl 1 KT f 11 . .1 . inuruer ooKuua i.imezo, a ieuow coumrvman; iiiaiw to plead to this indictment lie stood mute, and that ordered a plea of "not guilty" entered for him. This ml ized by statute. (Penal. Laws, Sec. 650.) That lie j informed the court that he had no eounei and thecoma Thomas C. Ridgway, an attorney of ihe W, to dell That on Friday, the 13th of July, 1900, the case to trial and a jury of twelve was called and sworn to trJ tioner; that witnesses were examined for the Territajj petitioner was sworn on his own behalf; that the attorns Territory and petitioner's counsel addressed the joy;; court charged the jury at 5 p. m.; that the jury nad erate on the verdict at 5:55 p. m.; and returned at with the following verdict: aWri tllO 1 1 1 fXJ iii tho ahnvp entitled cause hnd tbM said Fugihara Oriemon guiltv as charged. (Signed) .V.Houbj, That the jury was then polled and each of the jflj that that was his verdict. That on July 174 M defendant filed his motion for a new trial and in ment, and that each of those motions was oveny thereupon the Deputy Attorney-General moved and that the court pronounced the sentence hereinbefa We are bound to conclude from the record before petitioner was legally and rightfully convicted- Now that the day of execution named in the passed, it seems, that its presence there can in no ny right of the petitioner. But in order to aw. question of the regularity of the proceedings in the the greatest punishment known to the law, able that the petitioner should be resentenced. J done either in this court or in the circuit court. J practice we prefer that it should be done in tbec We therefore remand the record to the ami Fourth Circuit of the Territory of Hawau WQJ petitioner be taken before said court, at a regular' thereof, and resentenced to suffer the punish law for the crime whereof he has been duly con xt x .i x.- v.a l-pnt in close ui me meantime tne peuuoiiti r the high sheriff. 0, C. Bitting and 20. C. W attrf tioner. J. W. Catheart, Deputy Attorney-Gen' tory. Corner of Nuuanu and Hotel Street Curios. ... .Tf GIVE US A CA I