State v. Shon

• Citation: 47 Haw. 158,385 P.2d 830
• Decision Date: 04 October 1963
• Docket Number: No. 4273,4273
• Parties: STATE of Hawall v. Milton K. SHON.
• Court: Supreme Court of Hawai'i

Page 830

385 P.2d 830

47 Haw. 158

STATE of Hawall v. Milton K. SHON.

No. 4273.

Supreme Court of Hawai'i.

Oct. 4, 1963.

Syllabus by the Court

1. Where there is substantial evidence presented upon a preliminary hearing which, if given credence, would warrant the conclusion that a statement taken

from the defendant by the police was voluntarily given, the admission of the statement on the trial court's preliminary ruling on its voluntariness is unassailable.

2. The question of whether a confession was obtained by coercion or improper inducement can be determined only by examination of all of the attendant circumstances.

3. In a case tried by a jury the ultimate determination of the voluntary character of a confession is for the jury.

4. Instructions are to be considered as a whole.

5. Refusal to give a requested instruction, even though the instruction is proper in itself, is not error if the subject of the instruction is adequately covered by other instructions.

6. To entitle an appellant to a review of alleged error in the giving of an instruction, the objection urged at the trial must be set forth in the specification of error. Supreme Court Rule 3(b)(4).

7. Failure of an appellant to make proper application in the trial court to clarify a definition of a term contained in an instruction precludes him from urging error in this court on the ground that the definition was misleading.

8. A person who being present in any manners aids others in the commission of an offense is deemed a principal in the commission thereof. R.L.H.1955, §§ 252-1 and 252-4.

9. When two or more persons participate in the commission of an offense the acts of one in furtherance thereof and all legal presumptions pertaining to the offense are attributable and applicable to the other or others.

10. It is not necessary in order to make a defendant 'present' within the meaning of the term in R.L.H.1955, § 252-1, that he be in immediate contact with the others in the commission of the offense charged or that he be an eye and ear witness to what they do in connection therewith.

11. A person who aids and abets in the commission of a planned robbery which entails the use of a dangerous weapon with intent to kill or injure in the event of resistance is guilty of first degree robbery even though not himself armed with a deadly weapon.

12. A verdict must be responsive to the evidence and the possible verdicts submitted to the jury are likewise determined and limited by the evidence adduced.

13. A party may not complain on appeal of error in instructions to the jury which he has invited or agreed to.

Shuichi Miyasaki, Honolulu, Hawaii, for defendant-appellant.

John H. Peters, Pros. Atty., City and County of Honolulu, and George I. Hieda, Deputy Pros. Atty., for the State.

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

CASSIDY, Justice.

The appellant, Milton K. Shon, was convicted of robbery in the first degree under an indictment charging that in Honolulu on June 6, 1961, he, Ralph Antonio, Paul Yonashiro and William Texeira, Jr., while armed with a pistol, robbed Hing Bo Gum of approximately $300.00. ¹ The four defendants were tried jointly before a jury. Texeira was acquitted. Yonashiro and Antonio were found guilty with Shon of first degree robbery. Shon alone has appealed. A fifth participant in the robbery, James Arlos, was not indicted. He was under 18 years of age and was handled as a juvenile delinquent. He testified for the prosecution.

No challenge has been made to the sufficiency of the evidence to sustain the conviction but we think a resume of the facts will facilitate consideration of the errors assigned, particularly appellant's fifth specification of error. Proof of the facts summarized hereunder is by evidence exclusive of the extrajudicial confessions and incriminating statements admitted against appellant's three codefendants.

Appellant, Antonio, Yonashiro, Texeira and Arlos gathered on the evening of June 6, 1961, at their customary meeting place on Waterhouse Street in Kalihi, where there was a discussion on 'pulling a job' of 'holding up' or 'sticking up' the Middle Street Market. Sometime around 9 o'clock they drove from Waterhouse Street in Yonashiro's automobile to and past the market on Middle Street. Because the service station next door to the market was still open they returned to Waterhouse Street. They waited there until about 10 o'clock and then drove back to and past the market again. The service station was closed so Yonashiro drove his car around the block to Kamehameha IV Road and parked it off the road just below Rose Street, the cross street near which the Middle Street Market is located. Antonio wrapped some bandages around his head and he and Arlos left. Yonashiro remained with the car. He testified, 'I opened my hood and look around because we think cop come.' Shon and Texeira walked down Rose Street to a bus stop about a hundred yards from Kamehameha IV Road, where they sat and waited on a bench until Antonio and Arlos returned.

Antonio had a 38-caliber revolver in his possession. Before the car was driven to the market on the first trip the pistol was loaded with bullets which Shon, accompanied by Antonio and Yonashiro, had bought the day before. Shon was selected to purchase the bullets because he was the only one of the three who was of age. After the purchase Shon, Antonio and Yonashiro went to Sand Island for target practice.

When Antonio and Arlos reached the market, which is on Middle Street a short distance from Rose Street, Antonio entered and after purchasing two bottles of soda water rejoined Arlos outside. Shortly thereafter the two entered the store and Antonio immediately accosted Hing Bo Gum with the pistol. Hing Bo Gum testified that Antonio pointed the weapon at him and said, 'Don't move or else you are going to be dead.' The witness also said that he could see the revolver was loaded and cocked. On demand of Antonio, he opened the cash register. Antonio and Arlos took about $330.00 in cash from the register and fled.

As Antonio and Arlos ran by the bus stop on Rose Street, Shon and Texeira joined them the rest of the way to the parked car. All five got into it and returned to Waterhouse Street where, according to appellant's testimony, they picked up his car and 'dumped' Yonashiro's car at the latter's home. After transferring to appellant's car they drove to Arlos's home but his mother was up and about so they proceeded to appellant's home where they divided the stolen money, Shon getting $45.00 as his share.

Shon testified in his own behalf. He admitted purchasing the bullets at the direction of Antonio and Yonashiro and 'chipping in' for the purchase. He admitted hearing the others 'talking about how they were going to pull the plan' and seeing Antonio load the revolver at Waterhouse Street. He also admitted receiving a share of the stolen money. He admitted that he accompanied the group and that he physically acted in every respect as related in the above summary of facts, but he disclaimed he had had any intention of joining the others in the robbery. He said he 'went along just for the ride.' It was his testimony at one point that after discussion in the group 'as to how they were going to rob the store,' someone said, 'We go,' and that he joined the others in getting into the car but that he told them 'I don't want no part of the robbery,' and that 'I am going with you only for the ride.' At another point he testified, 'I heard someone say that they were going to pull the job,' and when one of the others asked him 'if you want to go up with us for the ride' he replied, 'O. K. I will go along only for the ride now, not for nothing else. If you guys going to pull a job I don't want to be no party.' He gave exculpatory explanations for other features of the evidence which tended to implicate him. He testified that he had not expected to receive any of the stolen money, that he thought the bullets were purchased for target shooting and that he and Texeira were not stationed at the bus stop by preplan or for any purpose connected with the robbery.

The other defendants also took the stand, first on voir dire examination on the voluntariness of the statements they gave the police and then to present their respective defenses to the charge. Antonio had rested without testifying in his defense proper but moved for and was granted leave to reopen his case. He took the stand and admitted the details of the robbery as related by Hing Bo Gum but said that he had had no intention of shooting or injuring the victim. Antonio testified that his intention in using the gun was, 'Just to place the person in fear.'

Appellant's first specification of error is that a written statement given by him to the police was exacted from him by coercion and was therefore improperly admitted in evidence.

There is considerable merit to the prosecution's claim that appellant has not complied with Rule 3(b)(4) of this court in specifying this contended error and that it should therefore be disregarded. However, it appears from the record that in the court below the appellant raised the question of the voluntariness of his written statement when it was offered and we think the specification, while inartfully drawn, does nevertheless sufficiently indicate the objection so made below and the desire of the appellant to present the issue on it to this court to warrant our considering the point.

Appellant was arrested on the evening of June 7 and was taken to Police Headquarters where he was first seen by Detective Huch at the receiving desk sometime between 10 and 11 o'clock. The officer said that when he talked to Shon there, and also a little later when he first questioned him in the quiz room Shon denied any knowledge whatsoever of the robbery. The detective said that he then confronted Shon with Arlos and that after Shon heard Arlos implicate him, Shon...