State v. Hassard, 4217

• Decision Date: 10 August 1961
• Docket Number: No. 4217,4217
• Parties: STATE of Hawaii v. Charles Kahale HASSARD, Jr.
• Court: Hawaii Supreme Court

Page 202

365 P.2d 202

45 Haw. 221

STATE of Hawaii v. Charles Kahale HASSARD, Jr.

No. 4217.

Supreme Court of Hawai'i.

Aug. 10, 1961.

Syllabus by the Court.

1. Where the defendant is before the court after being legally arrested on a bench warrant issued after indictment by the grand jury, it is immaterial, upon motion to discharge and dismiss defendant, whether an arrest made prior thereto was valid.

2. A second indictment returned after consideration of competent evidence will not be quashed for the reason that the same grand jury examined the wife of the accused, an incompetent witness, in returning the first indictment.

3. The question of the competency of the minor complaining witness to testify is a matter in the discretion of the trial court.

4. The determination of whether a mental examination is necessary is in the discretion of the trial court, and where the court bases its conclusion that the defendant is mentally competent from observation of the defendant and no abuse of discretion is shown, this court will not disturb the ruling of the trial court.

5. A spouse's incompetency being removed when testifying on behalf of a defendant, R.L.H.1955, § 222-18, the prosecution may argue the failure on the part of defendant to offer the spouse as a witness, when according to the evidence the spouse is in a position to know a fact material to the defense.

6. In a prosecution for carnal abuse of a female under twelve, it is not necessary to prove an emission or discharge on the part of the defendant; penetration alone is sufficient.

7. The verdict of the jury will not be set aside where it is supported by substantial evidence, amounting to more than a mere scintilla.

John F. Alexander, Hughes & Alexander, Honolulu, for appellant.

John H. Peters, Pros. Atty., Herbert Tanigawa, Deputy Pros. Atty., Honolulu, for respondent.

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

MIZUHA, Justice.

Defendant-appellant Charles Kahale Hassard, Jr. was first indicted on April 4, 1960, for carnal abuse of a female under twelve. R.L.H.1955, § 309-20. Upon objection that defendant's wife was called to testify before the grand jury, a nolle prosequi was filed. On June 9, 1960, the defendant was reindicted for the same offense. On June 22, 1960, defendant filed a 'Motion to Discharge and Dismiss Defendant' averring that he had not been taken before a qualified magistrate for examination within forty-eight hours from and after his arrest. The motion was denied. On June 29, 1960, defendant filed a 'Motion to Quash and Dismiss Indictment,' claiming that the second indictment returned by the same grand jury was invalid because his wife had previously testified before the grand jury which returned the first indictment. The motion was denied. On September 12, 1960, a jury trial began, which resulted in a mistrial. On September 23, 1960, defendant made an oral motion for mental examination. The motion was denied. On September 26, 1960, the second jury trial commenced, resulting in a conviction from which this appeal is taken.

The complaining witness was a nine year old girl, younger sister of defendant's wife. Briefly stated, the State's case is that the young child was sent to defendant's home by Mrs. Hassard--Mrs. Hassard and the child living temporarily apart from defendant because of a family quarrel--for the purpose of asking defendant to report to work and, upon so doing, was criminally assaulted by the defendant. Defendant denied the assault. There was no witness to the assault other than the complaining witness.

There are eight specifications of error. The appeal was submitted without oral argument.

Defendant has shown no error in the denial of his motion that he be discharged and dismissal for failure of the police department to bring him before a magistrate, or to discharge him within forty-eight hours of his arrest as claimed in specification number one. The record on appeal is devoid of any matter pertaining to the motion, except the motion itself. See State v. Brooks, 44 Haw. 82, 352 P.2d 611. Nevertheless, the question of illegal arrest being raised, it should be noted that the instant case is not one of habeas corpus or other proceeding to require the release of the defendant herein because of his being held contrary to or in violation of R.L.H.1955, § 255-9, which reads as follows:

'* * * It shall be unlawful in any case of arrest for examination * * * (e) to fail within forty-eight hours of the arrest of a person on suspicion of having committed a crime either to release or to charge such arrested person with a crime and take him before a qualified magistrate for examination.'

The defendant was before the court after being legally arrested on a bench warrant issued after indictment by the grand jury. It is immaterial whether an arrest made prior thereto was valid. Commonwealth v. Gorman, 288 Mass. 294, 192 N.E. 618, 96 A.L.R. 977. See In re Akamu, 17 Haw. 487.

By the second specification of error, it is contended that the second indictment should be quashed and defendant discharged on the ground that defendant's wife had previously testified before the grand jury in violation of the statutory provision making a wife incompetent as a witness against her husband. R.L.H.1955, § 222-18.

'* * * An indictment ordinarily will not be quashed or dismissed for the reason that the grand jury received improper evidence, or for the reason that the grand jury examined incompetent witness or witnesses, such as the wife of the accused, at least where other evidence was received or witnesses examined.' 42 C.J.S. Indictments and Informations § 209.

In the instant case, the defendant's wife testified before the grand jury which returned the first indictment, but did not testify before the grand jury which returned the second indictment. The record of the case reveals that no third person was present when the offense was committed, and the testimony of the complaining witness alone would have been sufficient for the grand jury to return true bills on both occasions. The complaining witness testified again before the grand jury which returned the second indictment.

In State v. Deal, 207 N.C. 448, 177 S.E. 332, the lower court refused to quash the bill of indictment on the ground that the defendant's wife was examined as a witness before the grand jury. It also appeared that five other witnesses were examined by the grand jury. The court quoting from State v. Moore, 204 N.C. 545, 168 S.E. 842, 844, re-stated the law on the subject as follows:

"It is well settled as the law of this state that, when a bill of indictment has been returned by the grand jury as a true bill, upon testimony all of which was incompetent, or upon the testimony of witnesses all of whom were disqualified by statute or by some well-settled principle of law in force in this state, the indictment will be quashed on the motion of the defendant made in apt time; but when some of the testimony was competent and some incompetent, or some of the witnesses heard by the grand jury were qualified and some disqualified, the court will not go into the barren inquiry of how far testimony which was incompetent or witnesses who were disqualified contributed to the finding of the bill of indictment as a true bill. State v. Levy, 200 N.C. 586, 158 S.E. 94; State v. Mitchem, 188 N.C. 608 125 S.E. 190; State v. Coates, 130 N.C. 701, 41 S.E. 706. This is the general rule in other jurisdictions. 31 C.J. 808, and cases cited."

The same grand jury may return a second indictment for the same offense, and a defendant be tried on same, when there is a nolle prosequi on the first indictment. People v. Follette, 74 Cal.App. 178, 240 P. 502; People v. Gilbert, 26 Cal.App.2d 1, 78 P.2d 770; 42 C.J.S. Indictments and Informations § 34(c)(d). Under State v. Deal, supra, the fact that an incompetent witness was examined upon the return of the first indictment presents no ground against the application of this rule.

This court accordingly holds that the lower court did not err in denying the motion to quash the second indictment.

At the outset of the trial defendant moved 'for dismissal of the prosecution on the ground that there had been an attempted deprival of the defendant of his constitutional rights in this case, in that defendant wouldn't be allowed to talk to his wife and myself [counsel for defendant] prior to the trial.' Counsel presented to the court: 'I was just informed, Your Honor, that he [defendant] came down here under orders, from the Oahu Penitentiary, conveyed by the Prosecutor's Office that he [defendant] wouldn't be allowed to talk to his wife and myself [counsel for defendant] prior to the trial.' This information, if true, called for action on the part of the court to correct the situation but not for dismissal of the prosecution. The court ordered that he shall have the opportunity to confer with his counsel, spouse and other defense witnesses during the course of the trial. It does not appear that defendant was prejudiced. The motion was properly denied.

Specification number four relates to admission into evidence of the testimony of the minor victim. The provisions of R.L.H.1955, § 222-16, reads as follows:

'* * * On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action or proceeding in any court, or before any person having by way or by consent of parties, authority to hear, receive and examine evidence, it shall be lawful for such court or person to receive the evidence of any minor, notwithstanding he may be destitute of the knowledge of God and of any belief in religion or in a future state of rewards and punishments; provided, that the evidence of such minor is given upon his affirmation or declaration to tell the truth, the whole truth, and nothing but the truth, or in such other form as may be approved and allowed by such court or person and after he has been...