State v. Chang

• Decision Date: 20 July 1962
• Docket Number: No. 4202,4202
• Citation: 374 P.2d 5,46 Haw. 22
• Parties: STATE of Hawail v. Harold H. CHANG and Edward P. Toner.
• Court: Hawaii Supreme Court

Page 5

374 P.2d 5

46 Haw. 22

STATE of Hawail v.Harold H. CHANG and Edward P. Toner.

No. 4202.

Supreme Court of Hawai'i.

July 20, 1962.

Syllabus by the Court.

1.The results of a polygraph or lie detector test are inadmissible in evidence whether offered by the prosecution or the defense.

2.A suspect's willingness or unwillingness to take a polygraph test is inadmissible at trial.

3.It is error to admit testimony that the defendant was asked by a police officer whether he would be willing to submit to a lie detector test.

4.Where evidence of import is erroneously admitted over objection and the court subsequently decides to reverse its ruling, the court should make it clear that the prior ruling was being set aside and at the same time explicitly instruct the jury to disregard the evidence.

5.The jury should be instructed in a criminal case to scrutinize and act upon an accomplice's testimony with special care and caution.

6.When the testimony of an accomplice substantially aide the prosecution's proof, it is error to refuse to instruct the jury that such testimony should be received and considered with great caution.

7.When a coconspirator testifies for the prosecution, the rule governing the testimony of an accomplice applies and the jury should be given a cautionary instruction.

8.It is the duty of the court upon proper request to charge the jury on any defense or theory of defense having support in the evidence.

9.It is not error for the court to refuse ambiguous and misleading instructions.

Bert T. Kobayashi and Noboru Nakagawa, Honolulu, for Harold H. Chang, defendant-plaintiff in error.

Robert E. St. Sure, Honolulu, for Edward P. Toner, defendant-plaintiff in error.

John H. Peters, Pros.Atty., City and County of Honolulu, and Harold K. C. Hu, Deputy Pros.Atty., for the State, plaintiff-defendant in error.

Before TSUKIYAMA, C. J., CASSIDY and WIRTZ, JJ., HEWITT, Circuit Judge, in place of LEWIS, J., disqualified, and TASHIRO, Circuit Judge, in place of MIZUHA, J., disqualified.

CASSIDY, Justice.

AppellantsHarold H. Chang and Edward P. Toner were charged with conspiracy in the first degree in a single count indictment alleging that sometime prior to August 4, 1959, they mutually undertook and conspired to commit the offense of gross cheat with intent to defraud the City and County of Honolulu of more than $100 by 'a scheme whereby false and fraudulent claims for the delivery of and payment for Incontinent Pads to Maluhia Hospital were made to said City and County of Honolulu.'Having been found guilty of the charge by a jury, they have appealed the conviction by writ of error.

There are sixty-eight errors assigned in appellants' joint assignment of errors.It is some relief therefore to note that forty-two of the assignments have not been carried into appellants' specifications of error.We will be concerned chiefly with the first and last of the twenty-six specifications set out in the opening brief.

The assignment of error attacking the sufficiency of the evidence are patently without merit and are among those culled by appellants in the preparation of their specifications of error.The appeal has been submitted on briefs without oral argument.While any issue on the sufficiency of the evidence must therefore be deemed abandoned (Stewart v. Spalding, 26 Haw. 162, 163-164;Territory v. Low, 35 Haw. 571, 572), a resume of the salient facts seems desirable, at least for understanding and disposition of appellants' specification of error No. 26.

Maluhia Hospital (hereinafter referred to as 'Maluhia') is maintained by the City and County of Honolulu under the direction of the City and County Physician.Defendant Toner was the Administrator of the hospital.He directly supervised its maintenance and operation.Other members of the managerial staff who are to be considered are the assistant administrator, James Ono, the budgetary accountant, Hiroshi Yoshida, and the storekeeper, Charles Tanaka.

The Defendant Chang was the chief stockholder and manager of Reagents Company, Ltd., a corporation.(It will be referred to as 'Reagents').With the exception of minor secretarial services performed by part time or temporary help, he personally attended to and conducted all of the business of the Company during the period involved in this case.

The prosecution's proof related to fifteen separate transactions between Reagents and the City and County occurring between August 4, 1957 and August 4, 1959.The transactions were evidenced by copies of pertinent official documents used and kept by the municipality in the regular course of business.This documentary evidence, as tabulated and explained by an auditor's testimony, shows that during the two-year period covered by the audit, 2,700 cases of incontinent pads were ordered from Reagents for Maluhia.The separate orders were usually in 200-case lots at prices generally between $13.50 and $14.00 per case and the total amount paid on the fifteen orders was slightly in excess of $27,000.00.This evidence also shows that during the two-year period only 1,663 cases of pads were delivered to Maluhia by Reagents and that the City and County had paid Reagents a total of $13,807.23 for 1,037 cases which were not delivered.

Under procedure prescribed for all departments of the City and County of Honolulu, a purchase of goods for Maluhia had to be initiated by the issuance of a requisition with copies thereof forwarded to the Purchasing Department of the City and County.After soliciting bids, that department would issue a purchase order to the successful bidder who, with or after delivery of the goods, would submit a copy of the purchase order and his invoice to Maluhia.Issuance by the City and County Auditor of a warrant for payment of the goods would follow upon his receipt from Maluhia of a summary of the claim with certification that its payment was in order.

Summaries of claims for purchases made for Maluhia were prepared and initialed by Yoshida and signed by the City and County Physician and by Toner.A requisite to certification of any claim for payment was an endorsement on one of the copies of the purchase order stating that the goods in the quality and quantity as ordered had been received.Another incident of normal purchasing practice called for furnishing Tanaka, the hospital's storekeeper, with a copy of the requisition when it was issued.

It was the testimony of Yoshida and Ono that, on direction from Defendant Toner they put through six of the orders for bed pads on what was termed a 'Q.T.' basis.They said that in connection with processing Q. T. orders they were instructed to keep the storekeeper, Tanaka, 'in the dark' by not following the customary practice of furnishing him with a copy of the requisition.Also, that with Q. T. orders the required acknowledgment of the receipt of the pads ordered was falsely made by Yoshida signing 'Tanaka per H. Y.' on the line designated 'Individual Receiving Goods or Services' appearing under the certification of receipt of goods as ordered on the copy of the purchase order occompanying the summary of claims.According to the testimony of Ono and Yoshida no delivery of bed pads was expected on a Q. T. order.With such an order the transaction was considered and treated as closed when payment was made to Reagents.

Some eight of the fifteen purchase orders with Reagents were identified and classified by the two witnesses as being 'Advance Payment' orders.This type of purchase was processed in the same manner as a Q. T. order and full payment was made prior to delivery of any of the pads ordered.However, with the Advance Payment orders it was understood that deliveries would eventually be made by Reagents and the evidence shows that in most cases Advance Payment orders were subsequently filled by deliveries made in small-lot installments extending over varying periods of time.It was the testimony of the two witnesses that these Advance Payment purchases were also put through on directions from Toner.Only one of the fifteen transactions with Reagents was identified as being an outright regular purchase in which delivery preceded payment.Yoshida and Ono testified that no other dealer furnishing supplies to Maluhia was ever paid before delivery.

There was no evidence of any confession from either defendant but the prosecution's case included proof of various incriminating admissions made by each of the defendants to different individuals called as witnesses.Both defendants testified.Each denied making the admissions attributed to him by the witnesses called by the prosecution.

From informal records he kept for Reagents, Chang confirmed the shortage in deliveries of bed pads as proven in the prosecution's case in chief.In fact he testified that the running account he kept showed 1,646 as the number of undelivered cases at the end of the two-year period covered by the audit.By his count Reagents was already 609 cases in arrears at the beginning of the audit period on August 4, 1957.

It was Chang's testimony that he had requested and Toner had consented to prepayment of the orders for bed pads.He said that it had always been his intention that delivery would be made on the orders--that all orders were taken with intention to make delivery but that he had difficulty in obtaining the bed pads from the manufacturer on time.He specifically denied any fraudulent concert with Toner or anyone else in connection with the orders of bed pads for Maluhia.His stand was that the liability for the nondeliveries was civil and not criminal.He admitted that in none of the financial statements prepared by him for Reagents was there any off-setting entry of liability to the City and County for the amounts received for the undelivered pads.

Toner's testimony was in essential aspects similar to that of his codefendant.He denied any knowledge of 'Q.T.' orders or of 'keeping the...