State v. Foster

• Citation: 354 P.2d 960,44 Haw. 403
• Decision Date: 16 August 1960
• Docket Number: No. 4139,4139
• Parties: STATE of Hawaii v. Kathryn D. FOSTER.
• Court: Supreme Court of Hawai'i

Page 960

354 P.2d 960

44 Haw. 403

STATE of Hawaii v. Kathryn D. FOSTER.

No. 4139.

Supreme Court of Hawai'i.

Aug. 16, 1960.

Syllabus by the Court

1. A verdict cannot be set aside by this court merely on the ground that it is against the weight of evidence and it must be upheld and a new trial refused if there is any substantial evidence, more than a mere scintilla, tending to support the findings necessary to the verdict rendered.

2. An appellate court cannot invade the province of the jury with respect to determining the facts, and the verdict of the jury as dependent on the evidence is ordinarily taken as conclusive on the appellate court.

3. Whether circumstantial evidence tending to connect the defendant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of defendant's guilt, is a question for the jury and not for the court. The weight of the evidence, whether direct or circumstantial, is a matter for the jury. When the evidence is of the latter kind, it is for the jury to say whether it excludes every reasonable hypothesis consistent with the innocence of the accused.

4. Where there is more than a scintilla of evidence to sustain the conclusion of the trial judge that the statement was voluntarily made the confession may be accepted into evidence.

5. In the absence of insanity or mental depletion at the time, neither the voluntary character of a confession or statement nor its admissibility is affected by the mental instability of the person making it. That condition is one for the consideration of the jury in determining the weight or effect to be given to the confession or statement.

6. It was not up to the prosecution to anticipate and negative every possibility that the defendant was not physically or mentally competent or was legally incapable to make a voluntary confession or statement.

7. A stipulation made inadvertently, inadvisedly or improvidently should be permitted to be withdrawn by the court when inequity will result to one side and the other party will not be prejudiced thereby.

8. In order to constitute a defense under R.L.H.1955, § 249-4, the mental derangement under which the defendant acted at the time of the commission of the alleged offense must be caused by or be the effect of a disease of the brain or malfunctioning of the mind rendering him incompetent to discern the nature and criminality of the act done by him.

9. A defendant's plea of not guilty controverts and puts in issue his sanity at the outset of the trial which is a fact to be determined by the jury upon the presentation of any credible evidence, however slight, on this issue.

10. An instruction embodying the provisions of R.L.H.1955, § 291-2, calling for a presumption of malice from the proof of killing, and placing the burden on the accused to overcome such presumption, is not appropriate as a matter of course in every murder case and, where applicable, should be accompanied by supplemental explanatory instructions.

Axel Ornelles, Honolulu, for plaintiff in error.

Arthur S. K. Fong, Asst. Prosecuting Atty., Honolulu, for defendant in error.

Before TSUKIYAMA, C. J., and MARUMOTO, CASSIDY, WIRTZ and LEWIS, JJ.

WIRTZ, Justice.

Defendant-plaintiff in Error, Kathryn Dennison Foster, hereinafter referred to as 'defendant' was indicted by the Territorial Grand Jury for Murder in the Second Degree, in March 1959, for the killing of her husband, Francis Cecil Foster, a retired Army Colonel.

On January 16, 1959, and for several years prior thereto, defendant and her husband lived in a two-story duplex apartment at 2003 Ala Wai Boulevard. The living room, kitchen and laundry area were on the first floor, while the bedrooms, one of which was used for storage, were located on the second floor.

At approximately 1:33 A.M., on January 17, 1959, James Edson, a hospital corpsman with the Hawaiian Armed Services Police, arrived at the apartment pursuant to a radio call. While opening the screen door he heard defendant saying 'Help him, help him.' 'God help him, God help him.' Upon entering, after the inner glass door was unlocked by her, he saw defendant and the nude body of decedent, lying on his back with his head resting on his right cheek, and plastic ice cube trays on his left cheek. He noticed two pools of blood on the living room floor, one of which was smeared while the other was 'partially coagulated.'

Edson's efforts to resuscitate the decedent proved futile and Dr. Richard Wong officially pronounced Colonel Foster dead upon his arrival at 1:55 A.M. The autopsy performed on deceased by pathologist Dr. Alvin Majoska disclosed a bullet wound in the midline of the neck in the back at the area near the hairline. The bullet had cut through the spinal cord at the first cervical vertebra immediately behind the skull, passing directly forward and lodging behind the left middle incisor tooth. The plane of the bullet's path was determined to be approximately parallel to the ground surface if the body had been in an erect position. The autopsy further revealed the presence, in the blood stream of deceased, of approximately three and a half milligrams of ethyl alcohol per cubic centimeter of blood.

Based on his findings and observations as a result of the autopsy, Dr. Majoska was of the opinion, as appears evident from the nature of the wound that it was not self-inflicted; that the deceased was intoxicated and probably not conscious at the time of his death; that the fatal wound was not a contact wound nor the result of a ricochet; that death was almost instantaneous.

The fatal gun, a .38 calibre Colt revolver registered to decedent was discovered by Officer Cyril Gomes on the top shelf of the front bedroom closet. There was still a faint smell of exploded gunpowder and two fired shells and four cartridges were in the cylinder. In front of the closet the officer noticed a cloth covered chair with a depression in the seat.

No second bullet was located, although a bullet hole was discovered in the inner door with a corresponding hole lower down in the outer door of the living room. The outer door lower hinge was bulged slightly outwards.

Mrs. Ethel Carrilho, who lived next door in the same duplex with the Fosters, testified that she heard two loud reports about five or seven minutes apart between 10:00 and 10:30 during the evening of January 16 which sounded like the backfire of an automobile.

The testimony of Mrs. Carrilho and Victor Emiel another neighbor, indicated that the Fosters often quarreled, although no such quarreling was heard during the night in question. Mrs. Carrilho testified that defendant, about a month before the killing, had on at least two or three occasions threatened her husband, stating something about a gun and that she would kill him. Mr. Emiel stated that quite often, from anywhere after 8:00 P.M. till about 2:00 A.M., he had heard the loud and audible voice of a woman emanating from the Foster apartment telling the other person to 'pack up and get out.'

Edward Tom, employed at the Honolulu Police Department as a Crime Analyst Specialist and by stipulation accepted as an expert chemist and analyst as well as an expert in ballistics, testified that from the chemical reagent applied to the wax impression taken of defendant's hands, he concluded that there was a small amount of nitrate present on the right hand. Similar tests conducted on the hands of decedent indicated a positive reaction on both hands. These tests simply indicate the presence of any substance containing nitrate such as 'gunpowder,' 'tobacco ash,' 'fertilizer,' and the like. No objection was made as to the inconclusiveness of these tests but an objection was made to the manner in which they were obtained. We assume, for the purposes of this opinion, that these tests are subject to the statutory requirement that they be voluntarily obtained.

Ballistics tests conducted by Mr. Tom identified the gun found by Officer Gomes in the bedroom closet as the fatal gun. Further tests indicated that deceased was not killed by a contact wound but that the weapon was fired at a distance greater than 15 inches from the wound.

Tests made by Mr. Tom on blood samples from the two pools, one of which was smeared, on the floor of the living room; the ewa wall on the stairway leading to the second floor; the floor of the kitchen and the wash tray in the laundry area; showed them to be of human blood and, upon comparison, of the same blood type as that of deceased.

From defendant's testimony both she and deceased had been drinking on the evening of January 16. Defendant recalls, at least two drinks of bourbon poured over an ice cube. The deceased was a heavy drinker. He and his wife did little entertaining. Defendant testified that he 'encouraged' her very frequently to drink, as often as two or three times a week, although she was reluctant to do so.

Defendant testified that the fatal gun had been purchased in Little Rock, Arkansas and that she had been taught how to use it by deceased. She also stated that she did not know exactly where the gun was kept although she was aware of its general location and that the last time she had seen it was in the latter part of 1958.

She testified in some detail about the events that occurred from the time she arose on that fateful morning until shortly after the return of her husband from his walk early that evening. They then sat down for a pleasant conversation. After she had at least two drinks she felt drowsy. Her testimony was that her next recollection was cleaning or wiping up something from the floor, which she believed to be blood. Everything thereafter was hazy to her. She stated that she does not clearly recall talking to any police officers or people around her, or being taken to any specific place or being given any tests, although she does remember something about removing her rings. The evidence covering this hazy period in the...