Hashimoto v. Halm, 2847.

• Court: Supreme Court of Hawai'i
• Writing for the Court: TOWSE
• Citation: 40 Haw. 354
• Parties: KAZUO HASHIMOTO v. HENRY HALM.
• Docket Number: NO. 2847.,2847.
• Decision Date: 20 November 1953

40 Haw. 354

KAZUO HASHIMOTO

v.HENRY HALM.

NO. 2847.

Supreme Court of the Territory of Hawai‘i.

Argued July 3, 1953.

Decided November 20, 1953.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT, HON. J. E. PARKS, JUDGE.

Syllabus by the Court

Evidence of collateral fleecings committed both prior to and after the transaction sought to be proved all of which allegedly involved appellant either directly or remotely, is admissible to establish a continuing conspiracy between appellant and others for the purpose and object of perpetrating fraud.

Evidence of acts or transactions of a similar nature committed by coconspirators is admissible in a civil proceeding grounded upon fraud or deceit to establish a particular state of mind, proclivity, motive, intent or interest in the subject matter, concealment, secrecy or circumvention.

To establish a conspiracy to commit a particular fraud, it may be shown that the alleged conspirators perpetrated a fraud of a similar nature upon a third party at or about the same time by employing a similar design or scheme. The latitude accorded admission of such evidence is proscribed only by the sound discretion of the trial judge.

To a great degree the existence of a civil conspiracy is proved by circumstantial evidence. It is sufficient if all of such evidentiary facts and circumstances when considered together establish that the participants united in an understanding way to accomplish a fraudulent plan or scheme. Where the proof required to establish such a conspiracy is dependent upon a vast amount of circumstantial evidence consisting of numerous isolated acts and declarations of the alleged conspirators, proof of which when taken together would establish that a conspiracy existed, the order of proof of such evidence is discretionary with the trial judge. It is sufficient if such evidence tends to establish prima facie, the act of conspiracy between the parties.

When a conspiracy is established, everything said or done by any of the conspirators in execution or furtherance of the common purpose it deemed to have been so said or done by all and may be proved against each whether said or done in the presence of the others or not.W. D. Ackerman, Jr. ( E. N. Sylva on the briefs) for appellant.

R. G. Hogan ( Hogan & Dyer on the brief) for appellee.

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

OPINION OF THE COURT BY TOWSE, C. J.

This cause is before the court upon the bill of exceptions of appellant Halm, who appeals from a joint and several judgment of $3,000 against himself and three coconspirators.

The errors specified are consolidated into the sole determinative issue: whether there was sufficient competent evidence to support the verdict of the jury.

The amended complaint alleges that Shigeru Kiyabu, George Tsutsui, Norman Kwack and Henry Halm “* * * were * * * members of a conspiracy which was established and which * * * existed for the illegal purpose of defrauding and otherwise illegally procuring money from individuals including the Plaintiff. * * * the Defendants * * * in furtherance of the aforementioned conspiracy, did conspire to defraud and take from the Plaintiff all of the money that they could; that on the 8th day of September, 1948, the Defendants * * * did defraud and did take from the Plaintiff the total sum of $3,000.00 in that Defendants engaged the Plaintiff in a gambling game played with cards, to-wit: high card; * * * and that during and in the course of said game, the Defendants caused to be taken from the Plaintiff and the Plaintiff did deliver over to the Defendants during the course of said game in the sum of $3,000.00.”

Appellee introduced evidence of six independent alleged fleecings in addition to the transaction in which he was fleeced and upon which the damages in the instant case were awarded. The principal ground of its asserted admissibility was to establish that a continuing conspiracy existed from June to October 12, 1948 among the defendants and others, the object of which was to defraud individuals in the city of Honolulu, and that during its existence Hashimoto became a victim at the hands of the defendants. Two of the collateral fleecings predated the instant case. Four occurred after it. All but one involved “rigged” card games. Appellant Halm was alleged to have participated in all; Kiyabu, Tsutsui and Kwack in all but two. The record yields an abundance of the customary circumstantial evidence so prevalent in proceedings of this nature, not only with respect to the specific fleecing alleged, but also in the re-creation of the collateral fleecings.

Appellee was a housepainter. Kiyabu, in company with Tsutusi, called at his home ostensibly to offer him a job. Prior to reaching their destination to inspect the work, Kwack joined them and displayed a bundle of currency packaged with a printed paper band. On arrival, Kwack left the vehicle. Tsutsui then suggested that he, Hashimoto, and Kiyabu “take the money away from the defendant Kwack” in a rigged gambling game. The appellee was thereupon persuaded to enter into a card game against Kwack and the quartet proceeded to a hotel where a game of “high card” was begun in which Tsutsui ostensibly won $10,000 from Kwack. Kwack refused to pay the loss unless Kiyabu, Tsutsui, and Hashimoto could first guarantee payment of a similar sum had they lost. They being momentarily unable to comply, Kwack stated that he would wait until noon of the following day to enable them to produce sufficient funds to cover such a loss. They then departed from the hotel, Tsutsui requesting Kiyabu and the appellee to meet him the following morning, stating that in the meanwhile he would borrow sufficient funds to comply with Kwack's demand. Appellee met Tsutsui, Kiyabu and Kwack the following day and they again invited appellee for a ride, during the course of which Tsutsui announced that he had been unable to raise his portion of the $10,000 and urged the appellee to raise as much thereof as possible. At this juncture appellee withdrew $950 from his savings account at the Bishop National Bank and was prevailed upon to borrow from friends and relatives. Appellee borrowed $2,000 and again met Tsutsui who announced that he, Tsutsui, had collected $5,000.

They then drove to the vicinity of Halm's residence at 431-A Olohana street where Tsutsui left the vehicle and entered the house. Shortly thereafter Tsutsui returned, and the group drove to Diamond Head beach road where Tsutsui advised Kwack that he had $8,000 with him, and requested Kwack to pay off his $10,000 loss of the preceding day. Kwack refused upon the ground that the agreement was to produce the sum prior to twelve o'clock noon, and that they had failed to do so. After further discussion Tsutsui suggested that inasmuch as they all had funds, they commence another game. A game of high card was started, Tsutsui again indicating to appellee that the game was “rigged” against Kwack. Kwack, however, “won” all of the money in the group, including the sum of $3,000 from appellee. At the conclusion of the game Kiyabu again drove the group to Halm's home where Kiyabu remained for approximately five minutes, and then departed. Appellee, upon discovering that he had been victimized by the group, reported the fleecing. He had not recovered any portion of his losses at the time of suit below.

In addition to the fleecing recited supra, appellee introduced evidence of at least six collateral fleecings, which in a marked degree followed the same general pattern of operation with the same cast of characters except as noted supra. The focal feature of each collateral scheme revealed that in some degree, at times remotely and at times in a more direct manner, the appellant Halm participated. Boodle, a deceptive device in in which currency is packaged with bills of smaller denominations or trimmed newspaper on the inside, but displaying currency of large denomination on the outside and bearing a $1,000 printed wrapper similar to that used in banks, was used in each of the collateral schemes. They occurred over a relatively short period both preceding and after the instant case. Their probative value was urged to be in support of the allegation that at or about the time appellee was victimized there was an existing and uninterrupted conspiracy between all of the named defendants including others at times, formed and existing for the broad purpose and object of fleecing and defrauding any likely prospect. Testimony was introduced that Halm participated in the preparation of the boodle in each instance sought to be proved; that boodle was used in the transaction involving Hashimoto; that Halm had in fact prepared and supplied the instant boodle which had been called for and later returned to Halm's home; and that in at least four of the fleecing transactions the vehicle used to transport the fleecers and the victim had made several stops at or in the immediate vicinity of Halm's home at 431-A Olohana street. Halm denied being a member of the conspiracy, but admitted “loaning” sums of money in return for a “10 per cent commission.”

At trial, the plaintiff proceeded upon his statutory remedy (R. L. H. 1945, §§ 11355-11358), an ex contractu count, and an ex delicto count. The ex contractu count was abandoned, the trial proceeding to conclusion upon the remaining counts.

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