39 Haw. 460 (Haw.Terr. 1952), 2868, Territory of Hawaii v. Alford

Docket Nº:2868.
Citation:39 Haw. 460
Opinion Judge:STAINBACK, J.
Party Name:TERRITORY OF HAWAII v. WILLIAM LAFAYETTE ALFORD.
Attorney:Harriet Bouslog ( Bouslog & Symonds on the briefs) for plaintiff in error. T. Kitaoka and J. H. Kamo, Assistant Public Prosecutors ( James H. Kamo, Assistant Public Prosecutor on the brief), for defendant in error.
Judge Panel:TOWSE, C. J., LE BARON AND STAINBACK, JJ.
Case Date:July 02, 1952
Court:Supreme Court of Hawai'i
 
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Page 460

39 Haw. 460 (Haw.Terr. 1952)

TERRITORY OF HAWAII

v.

WILLIAM LAFAYETTE ALFORD.

No. 2868.

Supreme Court of Territory of Hawai'i.

July 2, 1952

Argued May 22, 28, 1952.

ERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. J. WIIG, JUDGE.

Syllabus by the Court

The validity of a statute cannot be raised for the first time on appeal.

Evidence of facts showing motive, intent, plan or scheme on the part of defendant is admissible though such facts may show former offenses committed by defendant prior to the period of the statute of limitations.

At common law one spouse cannot testify for or against the other in a criminal prosecution except in a case of an offense of physical violence committed by one against the person of the other, this exception being based upon the necessity of the occasion. The absence of such an exception would leave the one without protection from the other. ( Lord Audley's Case, decided in 1631, 3 How. St. Tr. 401, 414.)

Common law rule has been codified by statute in many States and in the Territory of Hawaii.

The common law consists of fundamental principles and reasons and the substance of rules as illustrated by the reasons on which they are based rather than by the mere words in which they are expressed. It is not immutable but flexible and by its own principles adapts itself to varying conditions, and the court at all times in the application of any rule should give heed to present-day standards of wisdom and justice.

Under the common law as interpreted in the light of modern experience, reason, and the furtherance of justice, the exception to the general rule making a wife incompetent to testify against her husband in criminal cases, save when she has suffered a personal injury through his action, permits a wife to testify against her husband in a prosecution for a crime committed by the husband which corrupts the wife's morality, the exception of necessity in the case of assault for injuries to the spouse being equally applicable in protecting a wife against " complete degradation."

Where a husband was charged with the offense of compelling and procuring his wife to practice prostitution with intent to obtain a portion of the gains earned by her in such practice, the offense is one " against the person of his wife" under section 9838, Revised Laws of Hawaii 1945, and she is competent to testify against her husband when he is on trial for such offense.

Harriet Bouslog ( Bouslog & Symonds on the briefs) for plaintiff in error.

T. Kitaoka and J. H. Kamo, Assistant Public Prosecutors ( James H. Kamo, Assistant Public Prosecutor on the brief), for defendant in error.

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

OPINION

STAINBACK, J.

The defendant was indicted March 1, 1951, on five counts for procuring and pimping, contrary to the provisions of section 11676, Revised Laws of Hawaii 1945, as amended by Act 26 of the Session Laws of Hawaii 1949, the alleged offenses being committed on various dates as therein set out between the 1st day of December, 1949, and the 15th day of July, 1950. Defendant was arraigned in the circuit court of the first judicial circuit on April 13, 1951, where he entered a plea of not guilty; trial was had, jury waived; on April 25, 1951, defendant was found guilty and he was sentenced on May 25, 1951.

The evidence shows that the wife of defendant first met him in March, 1946, and lived with him from July, 1946, prior to her marriage to him in December, 1948; that she was working as a waitress and he was unemployed while living with her; that in August, 1946, the defendant persuaded her to go into the practice of prostitution; that he called her names, threatened her, and told her he had ways of handling a woman like her; that if she didn't do what he said he would " bust my face" ; from then on she continued to practice prostitution, turning her earnings over to him. After her marriage to him in December, 1948, she did not cease the practice of prostitution but continued to practice it upon his insistence and he continued to take her earnings. Detailed evidence was given as to various trips to the outside islands and the remitting of her earnings to defendant.

There is ample evidence (consisting mainly of the testimony of the wife of defendant, to which testimony objections were made) to show that defendant was guilty of the offense of pimping and procuring.

Before discussing the objections to the testimony of the wife of defendant, we shall briefly comment on the question raised for the first time on appeal as to the constitutionality of Act 26, Session Laws of Hawaii 1949, which it is alleged is contrary to section 45 of the Organic Act. As the question was not raised in the court below, and at the first opportunity, it cannot be raised for the first time in this court. ( Territory v. Kelley, 38 Haw. 433; Territory v. Tsutsui, 39 Haw. 287.)

Objections to the testimony of defendant's wife may be summarized as follows: (1) that the offense of procuring and compelling a wife to practice prostitution was not an offense against the person of the wife and therefore she was not competent to testify against defendant at a trial for such offense; (2) that evidence relating to other offenses, in particular those committed prior to the statute of limitations, was inadmissible and, if admissible, that the witness, who was the wife of defendant, was not competent to testify thereto for reasons set forth under (1) above; and, (3) if procuring the wife to practice prostitution were an offense against the wife and if she were competent to testify relative thereto, yet as to offenses committed prior to coverture the wife was not competent to testify under section 9838, Revised Laws of Hawaii 1945.

That evidence of facts showing motive, intent, plan and scheme on the part of defendant (even though it tends to show former offenses of the defendant) may be given is too well settled to need extended discussion. " It is not error to admit evidence of facts showing motive, or which are part of the transaction, or exhibit a train of circumstantial evidence of guilt, although such facts showed former offenses of the defendants." ( Ter. of Haw. v. Watanabe Masagi, 16 Haw. 196.) See also: Ter. v. Chong Pang Yet, 27 Haw. 693; Ter. v. Awana, 28 Haw. 546; Ter. v. Oneha, 29 Haw. 150; Territory v. Abellana, 38 Haw. 532; Wharton's Criminal Evidence, 11th ed., vol. 1, § 352, p. 527; Underhill's Criminal Evidence, 4th ed., § 187, p. 346: " Unrelated crimes which were barred by the statute of limitations may be introduced to show general plan * * *."

" While ordinarily evidence is not admissible of a crime distinct from that for which the defendant is being tried, the fact of such crime, and defendant's connection with it, may be proved whenever it tends to show guilty knowledge, design, plan, motive or intent, if these matters are in issue in the case on trial. * * * the evidence referred to would have been admissible if the first four counts had never been drawn. Upon this point it is well said by the Superior Court ( 88 Pa. Superior Ct. 216, 223): ‘ This evidence, documentary and oral, was admissible under the well-settled rule that evidence of similar and unconnected offenses may be offered to show guilty knowledge, design, plan, motive and intent when such is in issue, and this is true although the other offenses are beyond the statutory period: [Citing authorities.] Here the evidence tended to show that the offenses charged were part of a system * * *’ ." ( Commonwealth v. Bell, 288 Pa. 29, 135 A. 645.)

It was therefore not error to admit evidence showing that beyond the statute of limitations the defendant forced the complaining witness for the prosecution by threats and intimidation into the practice of prostitution and exacted from her the proceeds of such practice....

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