State v. Carvelo

• Decision Date: 24 March 1961
• Docket Number: No. 4210,4210
• Parties: STATE of Hawaii v. Edward Joseph CARVELO.
• Court: Hawaii Supreme Court

Page 45

361 P.2d 45

45 Haw. 16

STATE of Hawaii v. Edward Joseph CARVELO.

No. 4210.

Supreme Court of Hawai'i.

March 24, 1961.

Syllabus by the Court.

1. A person who, being present, aids and abets another in the commission of an offense may be directly charged and convicted as a principal.

2. One who acts as a watchman or in a similar capacity while confederates commit burglary is guilty of the offense as a principal.

3. Upon review of a criminal case on writ of error, this court, in determining whether the evidence is sufficient to support a jury finding of guilt, will not attempt to reconcile conflicting evidence, but will limit its consideration to whether there is sufficient evidence to sustain the verdict.

4. Questions concerning the credibility of witnesses and the weight of the evidence cannot be considered by this court on writ of error.

5. A verdict in a case involving conflicting evidence and depending on the determination of credibility of witnesses or the weight of the evidence is invulnerable when attacked on appeal if there is any substantial evidence amounting to more than a mere scintilla tending to support the findings necessary to the verdict rendered.

6. Evidence tending logically and by reasonable inference to establish any material fact for the prosecution, or to overcome any material matter sought to be proved by the defense, is admissible whether it embraces the commission of another crime or not.

7. Evidence of other offenses committed by the accused is admissible when such evidence tends to establish a common scheme or plan or to show knowledge, intent or purpose of the defendant with respect to the crime charged.

8. Proof of the defendant's guilt of separate and independent crimes other than that for which he is on trial is sufficient if the evidence thereof tends to prove the defendant guilty of the commission of such other crimes. The evidence need not establish the defendant's guilt of such other offenses beyond a reasonable doubt.

9. Proof that the accused was at the scene of the crime at the time of its commission, when coupled with suspicious circumstances, such as unseasonableness of the hour, lack of apparent reason for such presence or being in the company of an accomplice, constitutes corroboration of an accomplice's testimony inculpating the accused.

10. Although a jury should be cautioned respecting its consideration of the testimony of an accomplice, it may convict on the uncorroborated testimony of an accomplice.

11. Where accused is prosecuted as an aider and abettor, proof of the recent possession by an accomplice of stolen goods is sufficient foundation for the admission in evidence of such goods.

Louis Le Baron, Hololulu, for appellant.

John H. Peters, Pros. Atty., City and County of Honolulu, and Mack F. H. Hamada, Deputy Pros. Atty., Honolulu, for the State.

Before TSUKIYAMA, C. J., CASSIDY, WIRTZ and LEWIS, JJ., and HEWITT, Circuit Judge, assigned by reason of vacancy.

CASSIDY, Justice.

Appellant, Edward Joseph Carvelo, hereinafter also referred to as the 'defendant,' was charged with first degree burglary under an indictment alleging that, on February 16, 1957, he and Richard Kahalewai, Franklin William Jackson, and Richard Mitsugi Gushikuma burglarized the warehouse of Pacific Motors, Limited, in Honolulu. Defendant was separately tried by a jury and found guilty as charged. Pursuant to our ruling in In re Edward J. Carvelo, 44 Haw. 31, 352 P.2d 616, he applied to and was granted leave by the trial court to appeal in forma pauperis.

Review of the conviction is now before us on writ of error. Reversal is sought on three specified grounds, viz.: (1) that the evidence was insufficient to support the verdict; (2) that evidence respecting defendant's participation in prior burglaries was improperly received; and (3) that the trial court commited error in admitting in evidence a pair of wire snips, a bunch of keys and a watch found on the Pacific Motors premises by the company's president after the burglary. The specifications will be taken up in the order stated.

The issue on the sufficiency of the evidence is properly reserved by exceptions taken to the denial of a motion for a directed verdict made at the close of the prosecution's case, to the trial court's refusal to instruct the jury to find the defendant not guilty on submission of the case, and to the verdict rendered. We will first review the evidence adduced by the prosecution which supports the verdict.

The principal witness for the prosecution was one of the codefendants, Richard Kahalewai. It was brought out on cross- examination by defense counsel that the witness had originally entered a plea of not guilty to the charge of the indictment but later changed it to one of guilty and that he had not been before the court for sentence at the time of defendant's trial.

Kahalewai testified that on the evening before the burglary he was driving an automobile, a two-door Pontiac coupe, owned by his part-time employer, Larry Moody; that he picked up the three others named in the indictment at Kuhio Beach in Waikiki at about 9 o'clock; that they were all 'broke' and it was agreed among them, while they were driving around, that they would go on an expedition to steal money; that at about 11:30 or 12 o'clock they set out for the Mapunapuna Tract, where he, Jackson, and Gushikuma entered and stole money and other articles from some fifteen offices, while the defendant waited in the automobile under instructions to drive it back to its owner's place if at any time he heard a loud whistle to indicate they were in trouble. The witness further testified that after committing the burglaries in the Mapunapuna district, and while driving back to Waikiki at about 2 or 3 o'clock in the morning of February 16, as they neared the Pacific Motors, Limited, on Kapiolani Boulevard, he said, 'Let's try one more place,' and, when Gushikuma and Jackson assented, he drove the automobile into an alley between Pacific Motors and a service station on Kapiolani Boulevard, backed it around and parked it behind the service station facing in the direction of Waikiki. He said the defendant had been sleeping and that he work him up; that the defendant got out of the car to let the others out and then got back into it. Kahalewai stated that he returned to the car, took a crowbar, a pair of wire snips and two pairs of gloves from the back of it and then proceeded with the other two codefendants to Pacific Moters. Kahalewai first testified that when he woke the defendant he 'told him in case anything happened to take the car away,' but later in his testimony stated that he had given the defendant instructions to that effect only at Mapunapuna. He testified that they broke the lock of the outer door to the Pacific Motors warehouse with the crowbar, and while trying to break through a door to the inner store the door got caught and made a loud noise; that shortly thereafter two or three officers appeared on the scene and that when one of them tried to gain entrance to the premises through the outer door, he held it from the inside, and the officers apparently thought it was locked, and left. The witness said he heard the officers question the defendant and that the defendant told them he had been sleeping in the car. Kahalewai said he, Jackson, and Gushikuma left the scene without detection about a half hour later.

Two police officers, Herman Brandt and Jerry Freeman, were called as witnesses. Each testified that he went to the scene in response to a call to proceed to Pacific Motors. Brandt arrived before Freeman. Freeman testified that shortly after his arrival he and Brandt converged on the parked Pontiac and found the defendant in the front seat near the wheel of the car, crouched down, or as recorded from a demonstration, in a 'slumped down' position, and that they found two bags containing money, and a pistol, under the front seat, a pair of gloves, a black jacket and an open handbag of tools in the trunk of the car, and some tools lying loose in the back of it. The two bags of money and the pistol were found under the same spot, the witness said, and the pistol was 'imbedded in the seat covers in the front seat where Carvelo was sitting.'

The defendant was charged as a principal. The evidence discloses that he did not directly participate in the commission of the burglary charged. However, in this jurisdiction one who, being present, aids and abets another in the commission of an offense may be directly charged as a principal, and convicted as such. Revised Laws of Hawaii 1955, § 252-1, provides: 'All who take part in the commission of any offense, or, being present, aid, incite, countenance or encourage others in the commission thereof, shall be deemed principals therein,' and § 252-4 reads: 'Every person who aids in the commission of an offense, or is accessory before the fact thereto, is guilty of such offense, and shall be subject to indictment, trial and punishment therefor, in the same manner and to the same effect as if he had been present at the commission thereof and actually taken part therein.' The jury was properly instructed on these features of the applicable law.

On the facts presented by the prosecution's case, the jury could reasonably have concluded that the defendant's presence in the car at the scene of the burglary was for the purpose of aiding in its accomplishment to the extent, at least, of providing some assurance that the Pontiac would be removed from the scene of the crime in the event the active participants were detected in the process of committing it, thus eliminating the opportunity that would otherwise exist for tracing the identity of the burglars through the registered owner of the automobile. The fact that as things worked out the defendant was prevented from performing his part, in no way detracted from the permissible inference or conclusion that his role was to...