Goo v. Fat

• Decision Date: 17 March 1941
• Docket Number: NOS. 2416 AND 2417.,S. 2416 AND 2417.
• Citation: 35 Haw. 827
• Parties: ERNEST GOO v. HEE FAT.
• Court: Hawaii Supreme Court

35 Haw. 827

ERNEST GOO

v.HEE FAT.

NOS. 2416 AND 2417.

Supreme Court of the Territory of Hawai‘i.

Argued February 18, 1941.

Decided March 17, 1941.

ERROR TO CIRCUIT COURT FIRST CIRCUIT. HON. L. LE BARON, JUDGE.

Syllabus by the Court

Where a cause is brought to this court by writ of error, the views expressed by the court upon a question not affecting the determination of the case nor made the subject of an assignment of error are not controlling as the law of the case upon a second appeal.

The supreme court of Hawaii is an intermediate court of appeal in a case where the appellant has the right of appeal from an adverse decision by this court to the United States circuit court of appeals for the ninth circuit and a decision by this court on a former appeal of the cause does not become the law of the case.

Section 66 of the Hawaiian Organic Act confers upon the governor an unrestricted power to grant pardons which is not subject to legislative control. It is a prerogative that cannot be fettered by legislative restrictions.

A person convicted of perjury or subornation of perjury and subsequently granted a full and free pardon by the governor of the Territory, is, notwithstanding the provisions of section 3823, R. L. H. 1935, competent to testify as a witness in all of the courts of the Territory.

C. N. Tavares ( S. B. D. Wood with him on the briefs) for plaintiff.

S. Landau ( F. Patterson on the brief) for defendant.

COKE, C. J., KEMP, J., AND CIRCUIT JUDGE MCLAUGHLIN IN PLACE OF PETERS, J., DISQUALIFIED.

OPINION OF THE COURT BY COKE, C. J.

These cases, involving the same parties and identical questions, are consolidated by agreement of parties. For a history of the cases prior to our former adjudication of them, see Goo v. Hee Fat, 34 Haw. 123, where this court held that the orders of the circuit court entered January 3, 1935, dismissing plaintiff's actions for want of prosecution should be set aside and the causes remanded. At a subsequent trial in the circuit court it was stipulated that prior to institution of the proceedings in the circuit court, Goo Wan Hoy assigned the promissory notes upon which the suits were founded to his son, Ernest Goo, but for the purpose of collection and suit only and that said assignee had no other interest in the causes of action. It was further stipulated that Goo Wan Hoy, in March, 1918, and prior to the institution of the actions, had been convicted of the crime of perjury in the circuit court of the first judicial circuit and was sentenced to imprisonment by the judge of said court and had served a term of imprisonment; that on December 24, 1920, the governor of Hawaii granted to said Goo Wan Hoy a full and free pardon. At the trial in the lower court, in March, 1939, Goo Wan Hoy was the sole witness offered by plaintiff. Upon objection by defendant the trial court held that Goo Wan Hoy was incompetent, by reason of his prior conviction of the crime of perjury, to testify as a witness. Plaintiff then offered to prove by the witness all of the material facts of his complaints. Upon objection by defendant of this offer of proof, the court denied the same upon the ground of incompetency and irrelevancy and again held that Goo Wan Hoy was incompetent to testify by reason of his conviction of the crime of perjury as aforesaid. Plaintiff having rested, the court granted defendant's motion for judgment in favor of the defendant with costs. Written decisions were filed and on March 2, 1939, judgments were entered in both cases in favor of the defendant. Plaintiff filed exceptions to the decisions and judgment and the cases have now reached this court on writs of error.

The appellant has stated that the main question at issue is whether the lower court committed error in refusing to permit Goo Wan Hoy to testify and excluding his testimony and in refusing plaintiff's offer of proof on the ground that Goo Wan Hoy was incompetent to testify as a witness for the reasons stated and that the subsequent pardon of Goo Wan Hoy, before he was offered as a witness, did not remove such incompetency. The appellant urges that the rulings of the trial court complained of and set forth in his assignments of error were not only erroneous but also denied him the protection guaranteed by the due process of law provisions of the fifth and fourteenth amendments of the Federal Constitution. When these cases were formerly before us (see Goo v. Hee Fat, supra), there had been no ruling by the trial court upon the question of the competency of Goo Wan Hoy to testify as a witness and that question was not made the subject of any of appellant's assignments of error. It was mentioned for the first time in the briefs filed after the cases were here in the first instance and was thus injected into the proceedings informally and incidentally. The question was indifferently and inadequately presented and should have been ignored. And while the court in its opinion did discuss the divergent rules announced by the courts and text writers and expressed the view that under section 3823, R. L. H. 1935, a person convicted of the crime of perjury or subornation of perjury, although granted an executive pardon, is deemed insensible to the obligation of an oath and therefore incompetent to testify, yet the reversal of the lower court was upon the sole ground that the circuit judge committed error in dismissing the causes for want of prosecution and upon that ground alone the orders of dismissal were set aside and the causes remanded for reinstatement. It is therefore clear that the expressions by the court on the effect of a pardon granted to a person convicted of the crime of perjury were at best dictum and in no sense became the law of the case. The doctrine of the law of the case is not applicable for the further reason that in the present appeal the appellant complains that by the exclusion of the testimony of Goo Wan Hoy he was denied the equal protection of the law in contravention of the due process provisions of the fifth and fourteenth amendments of the Constitution and involves the construction of a federal statute, namely, section 66 of the Hawaiian Organic Act. Thus a federal question is raised with the right on the part of the appellant to have an adverse decision by this court reviewed in the United States circuit court of appeals for the ninth circuit and hence this court is an intermediate court of appeal and under these circumstances, as held in Sumitomo v. Hawaii Nosan, 26 Haw. 517, 536, the doctrine of the law of the case has no application.

For a discussion of the distinction between “res judicata” and “the law of the case” and of the application of the latter doctrine, see Southern Ry. Co. v. Clift, 260 U. S. 316, 319, and Reamer's Estate, 331 Pa. 117, 200 Atl. 35.

We are now requested by appellant to reconsider our former ruling. The action of the trial judge in excluding the testimony of Goo Wan Hoy and denying appellant's offer of proof was undoubtedly influenced by what this court said in Goo v. Hee Fat, supra, on the question of the competency of a person, convicted of perjury and subsequently pardoned, to testify in the courts of the Territory. We therefore deem it timely to re–examine the question and to the limit of our jurisdiction finally set at rest the law of a question which has been a troublesome one to the courts for centuries past. In this examination we are greatly aided by the ability and commendable industry of the present counsel for appellant in the preparation of the briefs filed by him.

Section 3823, R. L. H. 1935, reads: “No person offered as a witness shall be excluded by reason of incapacity from crime, perjury or subornation of perjury only excepted, or interest, from giving evidence either in person or by deposition according to the practice of the court, on the trial of any issue joined or of any matter or question, or on any inquiry arising in any suit, action or proceeding in any court, or before any person having by law or by consent of parties authority to hear, receive and examine evidence. But every person so offered may and shall be admitted to give evidence, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question or inquiry, or of the suit, action or proceeding in which he is offered as a witness, and notwithstanding that such person offered as a witness may have been previously convicted of any crime or offense except as aforesaid.”

At common law a person is incompetent as a witness if he has been convicted of an infamous crime and sentenced therefor. The Hawaiian statute modified the common law rule by lifting the barrier in all cases except perjury and subornation of perjury. As to those crimes, incompetency is prescribed, if at all, merely by implication and not by express language.

Section 66 of the Hawaiian Organic Act confers upon the governor of the Territory the authority to grant pardons or reprieves for offenses against the laws of the Territory.

It cannot be questioned that the doctrine sanctioned by this court in its former opinion has the support of the decisions of numerous courts. (See Blakely v. Bearden, 281 Pac. 952;The People v. Evans, 40 N. Y. 1; Foreman v. Baldwin, 24 Ill. 298; Evans v. The State, 7 Baxt. 12 [[[Tenn.].) 1 Greenleaf, Evidence (14th ed.), p. 470, says: “Where the disability is annexed to the conviction of a crime by the express words of a statute, it is generally agreed that the pardon will not, in such a case, restore the competency of the offender; the prerogative of the sovereign being controlled by the authority of the express law.” (See also 2 Hargrave's Juridical Arguments, p. 221.) The general theory being that the statute of disqualification prescribes a rule of evidence, as stated by Hargrave, “the pardon exerts its full vigor on the offender; but is not allowed to operate beyond this, upon the rule of...