Honda v. People, 15227.

• Decision Date: 06 July 1943
• Docket Number: 15227.
• Parties: HONDA v. PEOPLE.
• Court: Colorado Supreme Court

141 P.2d 178

111 Colo. 279

HONDA v. PEOPLE.

No. 15227.

Supreme Court of Colorado, En Banc.

July 6, 1943

Rehearing Denied Sept. 13, 1943.

Error to District Court, City and County of Denver; Stanley H Johnson, Judge.

George Honda was convicted of murder, and brings error. [Copyrighted Material Omitted]

McDougal & Oakes, of Denver, for plaintiff in error.

Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.

YOUNG Chief Justice.

A criminal information was filed in the district court charging George Honda with the murder of his wife, Mary Honda. A jury returned a verdict against him of murder in the first degree and fixed the penalty at death. A motion for a new trial was filed and overruled, and judgment imposing the penalty of death was entered on the verdict. Seeking to reverse this judgment defendant has sued out a writ of error in this court.

Defendant's counsel treats his sixteen assigned errors as raising seven issues and we shall accept these as the issues in the case since they fairly comprehend the points specified as constituting error. Defendant asks that the judgment of the district court be set aside and that he be granted a new trial because the court erred in entering its judgment in that: 1. The verdict is clearly the result of passion and prejudice, and is not the result of a fair and impartial consideration of the evidence by an unbiased jury. 2. The court should have granted a continuance under the circumstances presented. 3. The defendant was denied the equal protection of the laws guaranteed by the Constitution because people of his own race were excluded from the jury. 4. The alleged confession of defendant was not free and voluntary and was not, in fact, his confession and was erroneously admitted in evidence. 5. The defendant was further prejudiced by remarks of the two prosecuting attorneys, which injected the dangerous Japanese situation into the case. 6. Certain instructions tendered by the defendant should have been given, and Instruction No. 22 given by the court did not correctly state the law. 7. A new trial should have been granted for the reasons set forth in the motion for a new trial, and especially on the grounds of newly discovered evidence; the court erred in striking defendant's affidavits in support of the motion for a new trial.

From the record it appears that George Honda, thirty-seven years of age, an American citizen of Japanese extraction, was married to the deceased, Mary Honda, for a period of seven years. He is the father of two children, one aged three years, the other three months. Defendant was born in Honolulu, Hawaii, and when three months old was taken by his mother to Japan where he resided until he reached the age of sixteen. He then came to the United States, going to Washington, D.C., where he resided with an uncle for a period of eight years during which time he attended grammar and high school. Upon his uncle's death he received a small amount of money. He thereafter served as butler for a wealthy man in Plainfield, New Jersey, and after so serving for a time, went to Japan in search of relatives, later returning to his old position in New Jersey as butler. He then went to California, bought a twenty-acre strawberry farm and engaged in business with an uncle. This place was destroyed by flood and he then entered the restaurant business in California. He came to Denver about eight years Before the homocide, worked as a cook three or four years, and again engaged in the restaurant business, purchasing and operating the United States Cafe on Seventeenth street, Denver, which he was conducting May 3, 1942. On this date, which was Sunday, he arose at his usual time, very early in the morning, left the hotel apartment, and went to the restaurant. Shortly thereafter he returned, as was his custom, with milk for the baby. Later in the day one of his employees being absent, he returned to the hotel to ask his wife Mary to look after the restaurant while he went in search of another employee. Upon his return Mary went to their apartment to write the menus for the day. During the forenoon Honda was drinking various kinds of liquors, principally whiskey, some wine, and some beer. At about 10.45 a.m. he again returned to the hotel where he found his wife attempting to call her parents who resided near Brighton. Apparently angered by her action, he attempted to prevent her exchanging a dime for two nickles so that she could make the telephone call, and pulled her out of the telephone booth. He tried to induce her to go upstairs with him and she refused. She then requested the clerk of the hotel, a Mr. Thompson, to call her parents. Thompson complied with her request but ascertained that they were absent, and other members of the family suggested that he call Harry Osumi, a fellow countryman of defendant who appears to have acted as mediator on occasions in difficulties and quarrels between defendant and his wife. Defendant continued to be quarrelsome and the clerk told him that if he did not quiet down he would put him out. Honda then went upstairs. The clerk continued his call for Harry Osumi and Mary Honda sat down in the lobby of the hotel in a chair that stood next to the end of a settee on which the witness Patterson was sitting. Honda returned to the lobby. He walked to the place where his wife was sitting and cut and stabbed her at least four times, inflicting horrible wounds on her head, back, neck and abdomen. She rose from the chair, slumped to the floor, and apparently died almost instantly. The clerk Thompson, witness Patterson, and a third person, McCurry by name, disarmed Honda, threw him to the floor and restrained him until the police arrived. During this struggle, McCurry struck Honda a hard blow with his fist. After routine examination, police officers conveyed Honda to the police station. He was apparently highly excited and they were unable to talk with him or get any coherent replies to questions at that time, but about three hours later, after he had calmed down, he signed a statement, referred to in the record as his confession, in which he recited the salient facts as hereinBefore related. At this conference Harry Osumi was present and carried on conversation in the Japanese language with defendant, the purport of which, together with defendant's replies, was unknown to the officers. Honda says Osumi told him to sign the confession for he had killed his wife and did not have long to live in any event.

We find no merit in defendant's first contention that the verdict is clearly the result of passion and prejudice, and not the result of a fair and impartial consideration of the evidence by an unbiased jury. Considering the particularly brutal character of the killing, as disclosed by the testimony above outlined, the lack of any immediate adequate provocation even to serious anger, to say nothing of a murderous assault, and the entire absence of any controversy or dispute in the evidence of the fact or manner of the killing, it is not at all out of the ordinary course of events that the jury returned a verdict of first degree murder with the penalty fixed at death.

Counsel stresses the fact that defendant was of Japanese extraction, that this country is at war with Japan, that there is throughout the country a conscious, and if not a conscious, at least a subconscious hatred of members of the Japanese race, so intense that it was impossible for Honda, because he is a member of such race, to receive a fair trial while the state of war continues, and that he did not receive a fair trial. It would be futile to deny that such conditions have tended to inspire in a large part of our citizenship a dislike of the Japanese as a race because of their supposed or assumed racial characteristics. That is had become so general as to constitute a mob psychology at the time of the trial we think does not appear from the record. In this connection it may be noted that the victim, his wife, also was a member of the Japanese race. Defendant, at the time of the crime and for six months prior thereto and after the beginning of the war, had operated a restaurant on one of the main streets of Denver, and, as is disclosed by the record, was not without customers other than those of his own race. He and his family continued to occupy a hotel apartment on the same street, operated and patronized by members of the white race. At the very time of the killing, the clerk of the hotel, as a favor to defendant's Japanese wife, was engaged in calling Harry Osumi, a Japanese friend, also shown by the record to be operating a business in the city of Denver. This call was being made upon the suggestion of some member of Mary Honda's family at Brighton, also of the Japanese race, to whom the clerk had already talked at Mary's request. These facts, gleaned from the record, bear mute testimony that there was in the vicinity no general subconscious hatred or undercurrent of prejudice of such intensity that we may assume or conclude it had the effect of causing the jury to render a verdict based on passion or prejudice.

Furthermore the defendant, as does any person who commits the crime of murder, in choosing the place of his crime selected the forum of his trial. He, like any other defendant who chooses to commit a murder in such ruthless and cruel manner and by such brutal means as to shock the sensibilities of all normal-minded persons, even beyond the point necessarily incident to any killing, must abide the consequences of his acts and their resultant effect upon persons of normal and ordinarily humane instincts. Our jury system is not a perfect one, though doubtless the most satisfactory and...