OPINION OF THE COURT BY
LUM, J.
This appeal involves the statutory interpretation of Hawaii’s New Penal Code (New Code) and its application to an offense triable under Hawaii’s Pre-Penal Code (Old Code); it also involves the statutory interpretation of Hawaii’s detainer agreement, under chapter 834, HRS. The circuit court had dismissed an indictment charging both defendants, Robert Taylor Russell and Lawrence Frederick Carlson, with two counts of obtaining money under fraudulent and false pretenses under HRS § 750-21 (Old Code). The court had ruled that the statute of limitations of the New Code barred prosecutions of both defendants, and that a violation of the detainer agreement by the State against Defendant Carlson also required a dismissal of his case with prejudice. The State of Hawaii has appealed the court’s ruling and raises the question of whether the trial judge was correct in his interpretation of the applicable statutory provisions of the New Code and the detainer agreement. We have carefully examined these provisions of law and have come to the conclusion that the trial judge was incorrect. We therefore reverse.
I.
During the period between November 28, 1972 to February 26, 1973, defendants are accused of having committed false representations and pretense to fraudulently obtain from THC Financial Corporation approximately $800,000. It was during this period, on January 1, 1973, that the New Code became law. After February 26, 1973, defendants concede they have been continuously absent from this State.
The indictment was not returned against defendants until March 22, 1978, more than five years after their departure.
Defendant Carlson was a federal prisoner at Lompoc Federal Correctional Institution at the time of his indictment. The
prosecuting attorney was not aware of his presence there. He wrote the following letter to the institution on March 30,1978:
Lompoc Federal Correctional Institution
Lompoc, California 93436
Dear Sir:
Re: State of Hawaii
v.
Lawrence Frederick Carlson
Criminal No. 51119
Counts I and II: False Pretense
The Oahu Grand Jury returned an indictment against the above-named Defendant on Márch 22, 1978 for two counts of False Pretense, which involved fraudulently obtaining possession of money in excess of $800,000.00. A bench warrant was issued and remains unserved.
Please advise us if subject Defendant is incarcerated at your facility. If so, this office is prepared to file a Writ of Habeas Corpus Ad Prosequendum to bring Defendant Carlson back to this jurisdiction for arraignment and plea, and subsequently for trial.
Your early response to this inquiry would be much appreciated.
Very truly yours,
/s/ Togo Nakagawa
Togo Nakagawa
Prosecuting Attorney
The institution did not reply until May 30,1978, but before that date, the prosecutor had learned of Carlson’s imprisonment at Lompoc: The prosecutor immediately applied for and obtained from the court a Writ of Habeas Corpus Ad Pro-sequendum, which was then served on the U.S. Marshal in this State.
On the basis of the writ, Defendant Carlson was returned to Hawaii, and on June 7,1978, he entered a plea of not guilty. The following day, he was returned to Lompoc without being tried.
II.
We first take up the issue of whether the statute of limitations had actually expired to bar prosecution of the defendants.
Defendants are required to be prosecuted under the Old Code.
The statute of limitations of the Old Code
does not bar prosecution of “any person who absents himself from the State.”
Turning to the New Code, we find that § 701-101(2) provides in part:
(2) In any case pending on or commenced after the effective date of this Code, involving an offense committed before that date:
(a) Upon the request of the defendant a
defense
or mitigation
under this Code,
whether specifically provided for herein or based upon the failure of the Code to define an applicable offense,
shall apply;
.... (Emphasis added.)
The New Code then defines “defenses*”:
§ 701-115
Defenses.
(1) A defense is a fact or set of facts which negatives penal liability.
In their motion to dismiss, defendants requested the application of the New Code statute of limitations under § 701-108
as a “defense.”
Specifically, they were able to convince the trial judge that New Code § 701-108(6)(a) applied as a “defense” to their case. The ingenuity of defense resulted in the application of part of the statute of limitations of the Old Code and part of the New Code. In effect, the two-year running limitation of
the Old Code was used for the offense of false pretense
and the three-year tolling limitation of the New Code was used to cover defendants’, absence from this State. Such an application limited the prosecutable period to five years; thus, the court was able to find that the statute had expired by 24 days before the indictment was returned to justify his dismissal of the indictment.
Defendants argue that they are entitled to use any “defense’ ’ as provided by the New Code. We do not disagree, but we do not see that as the issue. The central issue is whether the statute of limitations of the New Code is applicable to the instant case. If it is not, then its three-year tolling limitation cannot be applied as a “defense”; in which case the unlimited tolling provision of the Old Code must govern.
Statutes of limitations are acts of grace conferred by the sovereign which limit its right to prosecute criminal offenders.
State v. Hickman,
189 So.2d 254 (Fla. 1966);
Commonwealth v. Howard,
289 A.2d 223 (Pa. 1967);
Vasquez v. State,
557 S.W.2d 779 (Tex. 1977);
Cunningham v. District Court of Tulsa County,
432 P.2d 992 (Okl.Cr. 1967).
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OPINION OF THE COURT BY
LUM, J.
This appeal involves the statutory interpretation of Hawaii’s New Penal Code (New Code) and its application to an offense triable under Hawaii’s Pre-Penal Code (Old Code); it also involves the statutory interpretation of Hawaii’s detainer agreement, under chapter 834, HRS. The circuit court had dismissed an indictment charging both defendants, Robert Taylor Russell and Lawrence Frederick Carlson, with two counts of obtaining money under fraudulent and false pretenses under HRS § 750-21 (Old Code). The court had ruled that the statute of limitations of the New Code barred prosecutions of both defendants, and that a violation of the detainer agreement by the State against Defendant Carlson also required a dismissal of his case with prejudice. The State of Hawaii has appealed the court’s ruling and raises the question of whether the trial judge was correct in his interpretation of the applicable statutory provisions of the New Code and the detainer agreement. We have carefully examined these provisions of law and have come to the conclusion that the trial judge was incorrect. We therefore reverse.
I.
During the period between November 28, 1972 to February 26, 1973, defendants are accused of having committed false representations and pretense to fraudulently obtain from THC Financial Corporation approximately $800,000. It was during this period, on January 1, 1973, that the New Code became law. After February 26, 1973, defendants concede they have been continuously absent from this State.
The indictment was not returned against defendants until March 22, 1978, more than five years after their departure.
Defendant Carlson was a federal prisoner at Lompoc Federal Correctional Institution at the time of his indictment. The
prosecuting attorney was not aware of his presence there. He wrote the following letter to the institution on March 30,1978:
Lompoc Federal Correctional Institution
Lompoc, California 93436
Dear Sir:
Re: State of Hawaii
v.
Lawrence Frederick Carlson
Criminal No. 51119
Counts I and II: False Pretense
The Oahu Grand Jury returned an indictment against the above-named Defendant on Márch 22, 1978 for two counts of False Pretense, which involved fraudulently obtaining possession of money in excess of $800,000.00. A bench warrant was issued and remains unserved.
Please advise us if subject Defendant is incarcerated at your facility. If so, this office is prepared to file a Writ of Habeas Corpus Ad Prosequendum to bring Defendant Carlson back to this jurisdiction for arraignment and plea, and subsequently for trial.
Your early response to this inquiry would be much appreciated.
Very truly yours,
/s/ Togo Nakagawa
Togo Nakagawa
Prosecuting Attorney
The institution did not reply until May 30,1978, but before that date, the prosecutor had learned of Carlson’s imprisonment at Lompoc: The prosecutor immediately applied for and obtained from the court a Writ of Habeas Corpus Ad Pro-sequendum, which was then served on the U.S. Marshal in this State.
On the basis of the writ, Defendant Carlson was returned to Hawaii, and on June 7,1978, he entered a plea of not guilty. The following day, he was returned to Lompoc without being tried.
II.
We first take up the issue of whether the statute of limitations had actually expired to bar prosecution of the defendants.
Defendants are required to be prosecuted under the Old Code.
The statute of limitations of the Old Code
does not bar prosecution of “any person who absents himself from the State.”
Turning to the New Code, we find that § 701-101(2) provides in part:
(2) In any case pending on or commenced after the effective date of this Code, involving an offense committed before that date:
(a) Upon the request of the defendant a
defense
or mitigation
under this Code,
whether specifically provided for herein or based upon the failure of the Code to define an applicable offense,
shall apply;
.... (Emphasis added.)
The New Code then defines “defenses*”:
§ 701-115
Defenses.
(1) A defense is a fact or set of facts which negatives penal liability.
In their motion to dismiss, defendants requested the application of the New Code statute of limitations under § 701-108
as a “defense.”
Specifically, they were able to convince the trial judge that New Code § 701-108(6)(a) applied as a “defense” to their case. The ingenuity of defense resulted in the application of part of the statute of limitations of the Old Code and part of the New Code. In effect, the two-year running limitation of
the Old Code was used for the offense of false pretense
and the three-year tolling limitation of the New Code was used to cover defendants’, absence from this State. Such an application limited the prosecutable period to five years; thus, the court was able to find that the statute had expired by 24 days before the indictment was returned to justify his dismissal of the indictment.
Defendants argue that they are entitled to use any “defense’ ’ as provided by the New Code. We do not disagree, but we do not see that as the issue. The central issue is whether the statute of limitations of the New Code is applicable to the instant case. If it is not, then its three-year tolling limitation cannot be applied as a “defense”; in which case the unlimited tolling provision of the Old Code must govern.
Statutes of limitations are acts of grace conferred by the sovereign which limit its right to prosecute criminal offenders.
State v. Hickman,
189 So.2d 254 (Fla. 1966);
Commonwealth v. Howard,
289 A.2d 223 (Pa. 1967);
Vasquez v. State,
557 S.W.2d 779 (Tex. 1977);
Cunningham v. District Court of Tulsa County,
432 P.2d 992 (Okl.Cr. 1967).
In its adoption of the statute of limitations of both the old and new codes, the Hawaii legislature constructed a statute which first sets out the periods of limitation for various offenses; it then sets, out certain exceptions — the circumstances in which the limitation periods are to be tolled.
Therefore, the statute of limitations is simply a rule of law with certain exceptions created by the legislature. The rule and its exceptions are a cohesive unit; they are reasonably related and represent a scheme by the legislature to carry out its wisdom of legislative grace. The exceptions are part of the rule and do not operate independently from the rule.
Defendants argue that the statute permits them to use the exception of the New Code as a “defense. ” We disagree. The
importation of exceptions into statutes properly affected with a public interest is not lightly to be made.
MacQuarrie v. McLaughlin,
294 F.Supp. 176 (D.C. Mass. 1968),
aff'd.
394 U.S. 456 (1969);
Hall v. Corporation of Catholic Archbishop of Seattle,
80 Wash.2d 797, 498 P.2d 844 (1972). Statutes are to be construed with reference to the whole system of law of which they form a part.
State v. Millette,
112 N.H. 458, 299 A.2d 150 (1972).
It is a well settled rule of statutory construction that exceptions to legislative enactments must be strictly construed.
Schlemmer v. Buffalo R. & P. Ry.,
205 U.S. 1 (1907);
Canadian Pac. Ry. v. United States,
73 F.2d 831 (9th Cir. 1934);
State v. Christensen,
18 Wash.2d 7, 137 P.2d 512 (1943);
City of Winfield v. Board of County Commissioners,
205 Kan. 333, 469 P.2d 424 (1970);
Emporia Township v. Williams,
149 Kan. 860, 89 P.2d 919 (1939);
State v. Ricke,
160 N.W.2d 499 (Iowa 1968);
see also Insurance Co. of North America Cos. v. Sullivan,
56 Wash.2d 251, 352 P.2d 193 (1960). One who claims the benefit of such an exception has the burden of bringing himself clearly within it.
Rheem Manufacturing Co. v. Rheem,
295 F.2d 473 (9th Cir. 1961);
Walling v.Reid,
139 F.2d 323 (8th Cir.
1943); Barlow v. Story,
120 Ga. App. 48, 169 S.E.2d 660 (1969);
State v. Ricke, supra; 2
F. Horack, Jr., Statutes and Statutory Construction § 4936 (3d ed. supp. 1972).
Defendants argue, and we concur, that the offense of false pretense for which they stand indicted is not covered by the New Code. It is for this reason that the statute of limitations of the New Code does not cover the offense of the instant case. Without such coverage, the exception suffers the same fate and cannot serve as a “defense.”
For the foregoing reas ons, we find that the trial court erred in ruling that the three-year tolling provision of the New Code can be applied to the two-year limitation period of the Old Code. We hold that § 707-1 of the Old Code is the only statute of limitations to be used in this case and because of defendants’ absence from the State, their prosecutions are not barred.
We believe that the construction we have adopted complies with § 701-104
of the New Code.
III.
The trial judge dismissed the indictment against Carlson with prejudice, holding that the Agreement on Detainers, HRS chapter 834, had been violated. He ruled that under Article IV(e),
the State was required to try Carlson before returning him to Lompoc.
The State now contends that the trial judge was in error to construe the prosecutor’s letter as a detainer. It argues that Carlson was returned to Hawaii via the writ of habeas corpus, which was an alternative procedure to the detainer law for his return. We agree with the State.
The detainer agreement is a model developed by the Council of State Governments. Standing Committee Report No. 426, Senate Journal at 1012-13 (1965). A reading of the Rules, Regulations, and Forms used under the Agreement on Detainers convinces us that a detainer is actually a request for temporary custody. It is directed to the head of the institution, advising him that the inmate is under a criminal charge. The head of the institution is also informed of the specific offense involved by the inmate, the prosecution’s proposal to bring the inmate for trial and the specific request for tempo
rary custody of the inmate in accordance with IV(a)
of thé agreement. To complete the report, the appropriate judge must have approved, recorded and transmitted the request.
David H. White (Stephen M. Okano
on the briefs, Okano,
Noguchi
and
Wong
of counsel), Special Deputy Prosecuting Attorneys, for plaintiff-appellant.
Michael A.
Weight,
Weight
and
Ellsworth
of counsel, for defendant-appellee Russell.
Philip D. Bogetto
for defendant-appellee Carlson.
Lacking all of the foregoing requirements, we find that the letter was not a detainer and that the trial judge was in error to dismiss the indictment against Defendant Carlson.
Reversed and remanded for action consistent with this opinion.