State v. Toshishige Yoshino

• Decision Date: 10 August 1961
• Docket Number: No. 4198,4198
• Citation: 364 P.2d 638,45 Haw. 206
• Parties: STATE of Hawaii, Defendant in Error, v. Richard TOSHISHIGE YOSHINO, Plaintiff in Error.
• Court: Hawaii Supreme Court

Page 638

364 P.2d 638

45 Haw. 206

STATE of Hawaii, Defendant in Error, v. Richard TOSHISHIGE YOSHINO, Plaintiff in Error.

No. 4198.

Supreme Court of Hawai'i.

Aug. 10, 1961.

Syllabus by the Court.

1. Evidence of other offenses which are so related as to form one inseparable and continuous transaction is admissible as an exception to the rule that it is not competent to prove one crime by proving another.

2. Evidence of other offenses committed by defendant is admissible when the identity of defendant is an issue and such evidence tends to establish identity.

3. The existence of a conspiracy is a fair subject of inference for the jury from all the facts submitted in evidence.

4. Order of proof is within the discretion of the trial court and it is not always requisite that a conspiracy be established before evidence of the acts and declarations of its members may be received in evidence.

5. Evidence of acts and declarations of conspirators done or made in furtherance of the common plan though subsequent to the offense charged is admissible against all of the conspirators.

6. Where evidence is admissible on two material issues, a requested instruction which purports to limit consideration thereof to one issue only, is erroneous; such instruction may be amended by the trial court to permit consideration of the evidence as it may bear upon both issues.

7. The appearance, in prison garb, of persons shown by the evidence to be accomplices, who were brought into the court to be identified, is not prejudicial when the fact that the offense had been committed was so well established by other evidence that the verdict could not have been affected thereby, this having no bearing on the proffered defense of alibi.

8. A verdict of a jury will not be set aside by this court as not supported by the evidence where there is any substantial evidence, more than a mere scintilla, to support it.

John H. Peters, Pros. Atty., and Herbert H. Tanigawa, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff, defendant in error.

Ernest Y. Yamane, Honolulu, for defendant, plaintiff in error; Daniel G. Ridley, Honolulu, of counsel.

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

WENDELL F. CROCKETT, Circuit Judge.

Defendant-plaintiff in error, Richard Toshishige Yoshino, was convicted in the First Circuit Court by a jury under an indictment for robbery in the first degree, which in substance charged that the defendant on the 6th day of September, 1959, being armed with a dangerous weapon, to wit, a gun, did feloniously rob, steal, take and carry away approximately $300 from the custody and in the presence of Kalani Fernandez by the use of force and putting him in fear of life and bodily injury.

The evidence for the prosecution showed that around 2:00 a. m., the morning of September 6, 1959, Kalani Fernandez, operating a '57 Oldsmobile in which were riding two companions, Mervyn Hezekia and Kenneth Harada, while stopped at the corner of Date Street and Kapiolani Boulevard in Honolulu, was hailed by someone in a car, later identified as a '58 Mercury, which drew up along the right side of his car. Fernandez was told that his cousin needed help and was asked to follow this car. Both cars proceeded to Iolani School parking lot where, after coming to a stop, Fernandez got out of the Oldsmobile and walked towards the Mercury. As he approached, three persons got out of the Mercury and at the point of a gun took from him the sum of $300. After this, Hezekia and Harada were ordered out of the Oldsmobile and told to get into the Mercury. Two of those who robbed Fernandez, identified as James Pokini and Henry Villita, ordered him into the back seat of the Oldsmobile, took over the car with Villita as driver and proceeded to the home of Harry Sonoda at Papakolea. The other of the three persons, identified as the defendant, Yoshino, re-entered the Mercury and with a fourth man, who had remained in the car during the robbery, at the wheel, drove off taking with them the two boys, Hezekia and Harada. With the Oldsmobile following, the Mercury proceeded to Papakolea and parked near the Sonoda home where a second robbery was allegedly perpetrated, the direct actors being Pokini and Villita. Later, Hezekia and Harada were given $10, dropped off at a service station and told to catch a taxi. The Oldsmobile after leaving the Sonoda home, proceeded along Punchbowl to Lusitana Street where it was stopped by Police Officer Lee, and the occupants placed under arrest.

The defendant Yoshino set up as his defense an alibi. He testified that he had been at his home during the evening and at about 12:45 a. m. on the morning of September 6th left home in his car to pick up his wife who was a ball-room hostess; that they both went to a drive-inn to eat and then returned home; that on that night he had not seen any of the persons who identified him as being present at the scene of the robbery charged.

The State's witnesses were allowed to testify as to what defendant calls a second crime committed by Pokini and Villita after the robbery was committed at the Iolani School parking lot. This testimony detailed events which occurred after the two cars left the parking lot, while proceeding to and at the home of Harry Sonoda at Papakolea. It was to the effect that a further robbery was perpetrated there by the persons riding in the Oldsmobile; also that after the two cars separated on leaving Papakolea, the Oldsmobile was stopped by a police officer at Lusitana, who arrested the occupants, searched them and the car and found two guns, a clip and shells.

Defendant's first and major assignment of error is to the admission of the testimony of what occurred after the robbery at the parking lot on the ground that it tended to show the commission of an offense with which the defendant was not charged. The court allowed the testimony under the authority of the case of Territory v. Abellana, 38 Haw. 532, in which this court said:

'To the established rule that evidence of other crimes wholly independent of that for which a defendant is on trial is inadmissible, are two equally well-defined exceptions: (1) That evidence of other crimes is competent to prove the specific crime charged if it tends to establish a common scheme, plan or system embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; and (2) when such evidence tends to aid in identifying the accused where his identity has not been definitely connected with the offense on trial.'

See also State v. Carvelo, 45 Haw. ----, 361 P.2d 45; State v. Yoshida, 45 Haw. ----, 361 P.2d 1032.

Objection to this line of testimony was made at the outset of the trial while Fernandez, the first witness, was testifying. At this stage of the proceedings, the court did not have the full and complete picture before it. The testimony was allowed upon the express condition stated by the court, that if the proof failed to establish a common scheme, plan or system, a motion to strike would be entertained, with instruction to the jury to disregard the same. The prosecution contended that such evidence was also admissible to establish the identity of the persons involved. The defendant was allowed a running objection to this testimony as well as to that of the subsequent witnesses but the record fails to show that he moved to strike this testimony at any time thereafter.

This assignment of error raises two questions: First, did the evidence as produced by the prosecution tend to show a common scheme or plan; and second, did such evidence tend to establish the identity of the accused?

Counsel for defendant contends that the rule of the Abellana case as to the exception showing a common plan or scheme is not applicable here because there is no 'logical connection' between the two offenses.

The rule under which evidence of other offenses is excluded is that '* * * on a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent (emphasis added) of, and unconnected with, that for which he is on trial, * * *, is irrelevant and inadmissible * * *.' A short version of the rule is '* * * it is not competent to prove one crime by proving another, * * *.' 22A C.J.S. Criminal Law § 682. This is a general rule of exclusion and it does not apply where the two crimes are so inseparable as to constitute but one transaction or crime. 22A C.J.S. Criminal Law § 683.

It is difficult to conceive of a series of events which more clearly depict one transaction with several crimes logically related or connected than are present in this case.

Undisputed and uncontradicted facts show that on the night in question, one of the persons in an auto accosted Fernandez and requested him to follow them to the Iolani School parking lot. On arriving there, three persons got out of the car and at the point of a gun, robbed him. After the robbery, they ordered him into the back seat of his car, Pokini and Villita took over and drove to the home of Sonoda at Papakolea; there Harry Sonoda was assaulted and money obtained under the threat of a gun.

After the robbery of Fernandez at the school parking lot, Pokini and Villita forced Hezekia and Harada to get out of the Oldsmobile and into the Mercury. The third man who had assisted in the robbery, identified by both Hezekia and Harada as Yoshino, the defendant, also re-entered the Mercury and threatened to kill Hezekia if he did not tell them 'where the money.' Hezekia finally told them 'Yeh, I know where the money stay. * * * Stay up Papakolea.' At that point the driver of the Mercury yelled to those in the Oldsmobile to follow the Mercury to Papakolea.

At Papakolea defendant did not get out of the car or actively participate in the assault and robbery that occurred there,...