Territory Hawai`i v. Abellana

• Decision Date: 25 May 1950
• Docket Number: NOS. 2659 AND 2660.,S. 2659 AND 2660.
• Citation: 38 Haw. 532
• Parties: TERRITORY OF HAWAII v. ARCENIO ABELLANA.
• Court: Hawaii Supreme Court

38 Haw. 532

TERRITORY OF HAWAII

v.ARCENIO ABELLANA.

NOS. 2659 AND 2660.

Supreme Court of the Territory of Hawai‘i.

Argued May 8, 1950.

Decided May 25, 1950.

ERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. J. A. MATTHEWMAN, JUDGE.

Syllabus by the Court

Evidence of independent and distinct subsequent crimes is admissible not only upon the issue of identity, but also as proof of a common scheme, plan or system embracing the commission of two or more crimes if the collateral crimes are so related in point of time, character and place of commission that proof of one tends to establish proof of the specific crime charged.

Photograph of a locus in quo which includes portrayal of a victim therein, which is not of such an inherently atrocious or nefarious nature as would tend to attach an indelible prejudicial or inflammatory impression in the minds of the jury against the defendant, is admissible upon the issue of identity though also cumulative of other evidence upon that issue.

A defendant, who by his sole and uncorroborated testimony, attempts to perpetrate a fraud upon the court by purposely and intentionally invoking a defense which, beyond a reasonable doubt and under all of the evidence tends to support the inference that such defense is in fact false and fabricated, thereby subjects himself to a measure of credibility forming the basis of a presumption of guilt.

M. L. Heen ( G. Y. Kobayashi and C. Y. Chikasuye with him on the briefs) for plaintiff in error.

A. R. Hawkins, Assistant Public Prosecutor (also on the brief) for the Territory, defendant in error.

KEMP, C. J., LE BARON AND TOWSE, JJ.

OPINION OF THE COURT BY TOWSE, J.

Writs of error issued to review the judgments of conviction of the crimes of rape and robbery in the first degree. The defendant consented to consolidation of the indictments for trial by jury, and by stipulation in this court consented that the proceedings on review be had jointly. The writs are directed to identical assignments in each case.

Substantial evidence was adduced at trial upon which the jury returned a verdict of guilty as charged under each indictment; and, as they pertain to the errors assigned are these: The victim of the rape, a fifty–three–year–old woman, in company with the victim of the robbery, an enlisted member of the United States Army, were walking ewa on the makai sidewalk of South King street in the vicinity of the entrance to the Catholic cemetery at about 6:30 o'clock p. m. Without warning both were confronted by two individuals unknown to them, one in military uniform later identified as Angelino P. Pacheco, Private First Class, United States Army, the other in civilian attire later identified as the defendant–plaintiff in error, hereinafter referred to as the defendant. Pacheco seized Jones' arm, leveled a .45 calibre United States Army automatic revolver at him and ordered him to proceed into the cemetery, the defendant simultaneously seizing Jones' female companion by the arm and also impelling her by force into the cemetery. At a locus criminis toward the rear of the cemetery Pacheco forced Jones, at the point of the weapon, to hand over to him the sum of three dollars cash together with his wallet. While this ensued, the defendant by force and against the will of the victim consummated the crime of rape. In doing so he forcibly tore and removed certain of her clothing, and inflicted bodily injuries by way of abrasions to the left upper thigh, scratches upon the left buttock, a blackened right eye, hematoma of the left check, contusions of the lips and loss of a tooth. The foregoing was established at trial by exhibits of the victim's false tooth, soiled white blouse together with one detached button, a torn and soiled white slip, a soiled white skirt, and a soiled undergarment. The defendant consummated his assault and ravishing of the victim within several feet and hearing distance of her helpless escort who could render no aid nor resist the duo as he lay prone and motionless guarded at the point of the weapon by Pacheco.

Upon consummation of rape, the defendant reversed roles with Pacheco, the weapon being passed from Pacheco to the defendant during the transposition. The defendant continued vigilance over Jones while Pacheco, by force and against the will of the victim, also raped her. Pacheco also by force, appropriated her purse containing four dollars. The victim eventually succeeded in escaping and fled toward the King street entrance of the cemetery, Pacheco in the interim terminating his guard over Jones. Together they followed the victim to the entrance again seizing her arm and menacing her at the point of the weapon demanding that she proceed to Thomas square for further illicit purposes. The victim resisted these subsequent advances to the best of her physical ability under the circumstances, and succeeded in attracting the attention of a passing motorist. Pacheco thereupon reconcealed the weapon upon his person and both terminated their advances and withdrew. The motorist transported the victim to Waikiki where she reported the assault. Jones, upon being released, also reported the attack and robbery.

The pair then boarded a Waikiki bound bus disembarking in the vicinity of Fort De Russy and proceeded to 413–A Seaside avenue, the residence of one Miss Adelaide Rodrigues, arriving at approximately 8:00 o'clock p. m. Miss Rodrigues, at the time of their entry upon the premises, was about to enter her automobile when she detected Pacheco and the defendant standing in the rear of the vehicle. She inquired of their mission, in reply to which the defendant stated that they had come to rob and steal. Pacheco seized Miss Rodrigues' arm and forced her to walk approximately twenty–five feet from the garage with him during which time he pointed the weapon at her back and warned her to remain silent. A neighbor reported the incident to the police, Pacheco and the defendant thereupon withdrawing. They were apprehended at approximately 8:30 o'clock p. m. on Ala Wai boulevard after pursuit and an ensuing struggle, Pacheco, at the time, having possession of the weapon. Further details of the evidence, pertaining to the defendant and the joint use of the weapon are set forth hereafter as they become pertinent to consideration of the assigned errors.

Charges preferred against Pacheco were transferred to the military authorities for disposition leaving the defendant, as a deemed principal, to be tried under separate indictments for rape and robbery in the first degree in the circuit court.

Five errors are assigned which will be specified and considered seriatim. Assigned errors numbered I and II will be considered concurrently.

I. “At the trial, one Adelaide Rodrigues * * * gave testimony of acts, circumstancs and things alleged to have occurred about two hours after the time of the alleged crime of rape and robbery * * * and about two miles away from the locale of the said alleged crime of rape and robbery, which testimony was offered by the Territory for two purposes, viz.: (1) To show that ‘these two men had a plan that night to rape and rob’, and that such plan was ‘continuous', and (2) to indentify and thereby connect the accused with the commission of the alleged crime of rape and robbery as charged––to all of which testimony * * * said Defendant, Plaintiff in Error, objected upon the ground that it was immaterial and prejudicial * * *.”

II. “The Court erred in overruling the defendant's motion to strike the testimony of the said witness Adelaide Rodrigues * * * upon the ground of prejudice to the Defendant * * *.”

The pertinent portions of the testimony of Adelaide Rodrigues, called as a witness on behalf of the Territory, established that on the night in question between 8:15 o'clock p. m. and 8:20 o'clock p. m. at her residence at 413–A Seaside avenue, as she was about to enter her automobile in her garage, she saw Pacheco and the defendant standing at the rear of the vehicle looking into her apartment. She inquired whether they were looking for someone, the defendant replying that “they had come there to rob and steal, and ‘What are you going to do about it’ ”? The witness repeated her inquiry, the defendant replying that they were looking for an individual named Price, Miss Rodrigues replying that he (Price) did not reside there. Pacheco thereupon “grabbed me by my left arm and I walked along with him for about twenty–five feet, and he stuck this revolver in my back and told me I wasn't going to talk about it * * *.”

Error is urged upon the ground that the testimony disclosed that the defendant had committed another crime wholly independent of, and unconnected with that for which he was tried; that the testimony was irrelevant and inadmissible in that it did not tend to establish the commission by the defendant of the crimes laid in the indictment; that the defendant being triable for but one offense at a time, evidence thereof must be confined to the issues created under the instant indictments, evidence of other crimes thus compelling him to meet charges of which the indictments give him no information, confuses his defense, raising a variety of issues, and resultingly diverts the attention of the jury from the issues immediately before it, all to his prejudice.

To the established rule that evidence of other crimes wholly independent of that for which a defendant is on trial is inadmissible, are two equally well–defined exceptions: (1) That evidence of other crimes is competent to prove the specific crime charged if it tends to establish a common scheme, plan or system embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; and (2) when such evidence tends to aid in identifying the accused where his identity has not been definitely connected with the offense on trial.

“While the rule itself is fundamental and well settled by a long line of adjudication, it is equally...