Territory v. Awana

• Decision Date: 22 August 1925
• Docket Number: No. 1610.,1610.
• Parties: TERRITORY v. JAMES P. AWANA.
• Court: Hawaii Supreme Court

28 Haw. 546

TERRITORY

v.JAMES P. AWANA.

No. 1610.

Supreme Court of the Territory of Hawai‘i.

Argued June 10, 1925.

Decided August 22, 1925.

EXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. J. J. BANKS, JUDGE.

(Perry, J., dissenting.)

Syllabus by the Court

Evidence of other crimes similar to that charged is relevant and admissible when it shows or tends to show a particular criminal intent which is necessary to constitute the crime charged. That this evidence incidentally proves independent crimes is immaterial.

R. L. 1925, ss. 1491 and 1492, are broad enough to cover embezzlement by a public officer. A fraudulent intent is an essential ingredient of the crime of embezzlement as defined by R. L. 1925, s. 4191.

Evidence of other crimes similar to that charged need not of itself show the guilt of a defendant of the commission of such offenses beyond all reasonable doubt. It is sufficient if such evidence tends to prove the defendant guilty of the commission of such other offenses.

Where a statute defining a criminal offense is silent as to intent, but the act made criminal imports a criminal intent, an allegation of such intent is unnecessary.

Evidence held to be sufficient to sustain verdict.

An instruction to the effect that the jury may in determining the degree of credibility to be attached to the evidence of the defendant take into consideration his interest in the result of the prosecution, if contrary to the prohibitions contained in R. L. 1925, s. 2426, and error, is not prejudicial error entitling the defendant to a new trial where as here the defendant had no defense and the evidence leaves no reasonable doubt of his guilt.

W. H. Heen, City and County Attorney ( E. K. Massee, Deputy City and County Attorney, with him on the brief), for the Territory.

A. M. Cristy ( Brown, Cristy & Davis on the briefs) for defendant.

PETERS, C. J., PERRY AND LINDSAY, JJ.

OPINION OF THE COURT BY PETERS, C. J.

The defendant was convicted of the crime of embezzlement. His exceptions include the following assignments of error: (1) That evidence of similar offenses was improperly admitted for the reasons (a) that a criminal intent is not a necessary ingredient of the offense charged in the indictment and (b) that the evidence did not show beyond a reasonable doubt that the defendant was guilty of other offenses similar to that charged; (2) that if a criminal intent is a necessary ingredient of the offense charged the indictment is fatally defective in that it fails to allege such criminal intent; (3) that the verdict is contrary to the evidence; (4) that the court in its instructions to the jury commented upon the weight and credibility of the evidence of the defendant.

(1a) The indictment charged that on the 13th day of August, 1923, the defendant being then and there an employee of the City and County of Honolulu, a municipal corporation, to wit, a clerk of the Honolulu water works and the sewer works department of the said city and county, and by appointment and employment charged and entrusted with the safe-keeping, transfer and disbursement and having the possession, control and custody of certain moneys belonging to said City and County of Honolulu, to wit, the sum of $77.35, by the consent and authority of said city and county, without the consent and against the will of the said city and county, the owner thereof and entitled thereto, the said moneys then and there feloniously did embezzle and fraudulently convert and dispose of to his own use and benefit.

Evidence of other crimes similar to that charged is relevant and admissible when it shows or tends to show a particular criminal intent which is necessary to constitute the crime charged. That this evidence incidentally proves independent crimes is immaterial. (16 C. J., title “Criminal Law,” §1137; Territory v. Chong Pang Yet, 27 Haw. 693, 695.) Where a fraudulent intent is an essential ingredient of the crime of embezzlement the rule admitting evidence of other crimes similar to that charged tending to show a fraudulent intent is peculiarly applicable. (16 C. J., title “Criminal Law,” §1159.) The defendant contends that the offense of which he was indicted is that defined by R. L. 1925, s. 4192, and that the mere conversion to his own use by a public officer or other person charged by law, regulation or appointment with the safe-keeping, transfer or disbursement of property belonging to a municipal corporation constitutes embezzlement and that no fraudulent intent is necessary.

Whether a fraudulent intent is a necessary ingredient of the offense of embezzlement defined by R. L. 1925, s. 4192, we deem unnecessary to decide. From the wording of the indictment it is apparent that the defendant was indicted of the offense of embezzlement as that offense is defined by R. L. 1925, s. 4191. This section has been held by this court to be broad enough to cover embezzlement by a public officer. (Territory v. Wright, 16 Haw. 123, 131, followed with approval in Territory v. Clark, 20 Haw. 391, 394.) R. L. 1925, s. 4191, defining the offense, and s. 4192, fixing the punishment, amply support the indictment in this case. That the defendant might also have been indicted under R. L. 1925, s. 4192, is no defense to an indictment under R. L. 1925, s. 4191. It is no defense to an indictment under one statute that the defendant might also be punished under another. (Ex parte Converse, 137 U. S. 624.) If, as the defendant contends, a fraudulent intent is not a necessary ingredient of the crime of embezzlement as defined by R. L. 1925, s. 4192, then in indicting this defendant under s. 4191 the prosecution assumed an additional burden of which certainly this defendant cannot complain.

A fraudulent intent is an essential ingredient of the crime of embezzlement as defined by R. L. 1925, s. 4191. The gravamen of the offense as there defined is not the mere fraudulent conversion of the property of another to one's own use or to the use of another not entitled thereto. The word “fraudulent” in connection with the word “conversion” relates specifically to the fraudulent intent with which the conversion is committed. ( State v. Patterson, 71 Pac. (Kans.) 860, 861.) The word “embezzle” and the words “fraudulently convert to one's own use or the use of another not entitled thereto” mean the same thing. ( Spalding v. People, 49 N. E. (Ill.) 993, 998.) The effect of the word “fraudulently” in connection with “converts and disposes of the same * * * to his own use and benefit or to the use and benefit of another than the owner or person entitled thereto” has never been directly passed upon by this court. Doubtless the plain import of the words employed in the statute has rendered their interpretation unnecessary. In the Wright case, supra, however, it was contended by the defendant that the evidence did not sustain a finding that the defendant fraudulently converted money to his own use and the court there said: “* * * the necessary result being that the Territory was defrauded of the money, a result which the law authorized the jury to regard the defendant as having intended.” A fraudulent intent being a necessary ingredient of embezzlement as defined by R. L. 1925, s. 4191, evidence of other crimes similar to the one charged, committed at or about the same time, was relevant and admissible to show that the alleged conversion by the defendant was committed fraudulently.

(1b) Defendant contends that the evidence adduced in support of other prior similar offenses did not of itself show beyond all reasonable doubt that the defendant was guilty of such offense and hence should not have been submitted to the jury. He cites in support of his contention Baxter v. State, 110 N. E. (Ohio) 456. This case, however, is not persuasive. We prefer the reasoning and the rule enunciated in Commonwealth v. Robinson, 16 N. E. (Mass.) 452, approved and followed in State v. Hyde, 136 S. W. (Mo.) 316, to the effect that the evidence of other crimes similar to that charged need only tend to prove the defendant guilty of such other crimes. The degree of proof required of the prosecution to entitle it to a conviction applies to the offense charged and every essential ingredient thereof. One of the essential ingredients of the embezzlement as charged was a fraudulent intent. Hence the fraudulent intent must be proved beyond all reasonable doubt. It does not follow that a collateral matter from which intent may be inferred must also be proved beyond all reasonable doubt. To require such a degree of certainty would be unreasonable and cast a burden upon the prosecution in excess of what the protection of persons accused of crime requires. As we shall hereafter more fully point out in connection with the exception to the verdict, the evidence tended to show similar embezzlements by this defendant within a short time prior to the embezzlement charged in the indictment. This evidence was competent and material and its admission was not error.

(2) Where a statute defining a criminal offense is silent as to intent but the act made criminal imports a criminal intent an allegation of such intent is unnecessary. R. L. 1925, s. 4191, does not make intent affirmatively or descriptively an element of the crime of embezzlement. Hence unless the act condemned without such averment would otherwise be innocent or indifferent it need not be alleged. The act made criminal is the fraudulent conversion of the property of another to one's own use or benefit or to the use and benefit of another than the owner or person entitled thereto. The indictment alleges a felonious and fraudulent conversion and disposition by the defendant to his own use and benefit. As already pointed out, the word “fraudulent” in connection with the word “conversion” relates specifically to the fraudulent intent with which the conversion is committed. “Feloniously” is equivalent to “purposely” or “unlawfully.” ( State v. Bush, 27 Pac. (Kans.) 834; ...