State v. Yoshida

• Decision Date: 25 April 1961
• Docket Number: No. 4152,4152
• Citation: 361 P.2d 1032,45 Haw. 50
• Parties: , 45 Haw. 82 STATE of Hawaii v. Stanley K. YOSHIDA.
• Court: Hawaii Supreme Court

Page 1032

361 P.2d 1032

45 Haw. 50, 45 Haw. 82

STATE of Hawaii v. Stanley K. YOSHIDA.

No. 4152.

Supreme Court of Hawai'i.

April 25, 1961.

Rehearing Denied May 12, 1961.

Syllabus by the Court

1. In a prosecution for bribery of participants in a basketball game in violation of R.L.H.1955, § 265-7, evidence that defendant said he was making money on all the games of the season, including games subsequent to that involved in the charge, was relevent and was not rendered inadmissible by reason of betting on athletic games being an offense under R.L.H.1955, § 288-8.

2. When the relevance of statements by defendant as to betting by him on basketball games lies in defendant's motive to bribe participants in a game, there is no necessity to show that bets actually were placed and the rule as to proof of the corpus delicti has no application.

3. A defendant cannot demand that his guilt of other crimes be established when the admissibility of the evidence does not turn on any such showing.

4. Instructions must be considered as a whole. One may be supplemented by another.

5. An appellant is in no position to complain that the words 'being present,' contained in one instruction, should also have been included in another, when he made no objection to the omission of these words from the latter at the time of settlement of the instructions.

6. Error cannot be predicated on the failure to give an instruction that was not requested, or that was requested only in erroneous terms.

7. In a prosecution for bribery of participants in a basketball game, there being evidence from which the jury could infer a conspiracy between defendant and K. pursuant to which K. was to importune the players to limit their team's margin of victory in a certain game, neither admissibility in evidence of the statements made by K. to the players, nor the guilt of defendant, turned upon the question whether defendant, who was present at the scene, could hear what K. said to the players.

8. A defendant need not be immediately present as an eye and ear witness of what passes in order to be a principal under R.L.H.1955, § 252-1.

Hyman M. Greenstein, Greenstein & Franklin, Ton Seek Pai, Honolulu, for appellant.

John H. Peters, Pros. Atty., Lincoln J. Ishida, Deputy Pros. Atty., City & County of Honolulu, for respondent.

Before TSUKIYAMA, C. J., CASSIDY, WIRTZ, and LEWIS, JJ., and F. A. McKINLEY, Circuit Judge, Assigned by Reason of Vacancy.

LEWIS, Justice.

Defendant, after jury trial, was convicted of bribing participants in a basketball game in violation of R.L.H.1955, § 265-7. On November 24, 1959, defendant obtained issuance of a writ of error to review the judgment and sentence entered August 28, 1959.

The indictment charged that defendant:

'* * * on the 5th day of February, 1958, did, unlawfully, wilfully, and feloniously, promise and offer to Francis _____, James _________________________, and Rodney _____, ¹ all player-members of the 1957-1958 Saint Louis High School Basketball Team of the Interscholastic League of Honolulu, a thing of value, to-wit, a dinner, with intent to influence them to limit their team's margin of victory in the Saint Louis High School versus Maryknoll High School game, a basketball game in which the said player-members expected to take part, * * *.'

Defendant's first point is that the court 'erred in permitting Ronald Kakuda to be repeatedly questioned after the witness had indicated that he did not wish to testify, and in finding the witness in contempt a total of thirteen times in the presence of the jury.' Kakuda, co-indictee, who was sentenced on a plea of guilty before defendant's trial, was called as a witness by the State, and after testifying that he was in Oahu Prison for burglary and bribery, invoked the Fifth Amendment. He was informed by the court that he had no privilege thereunder, but refused to answer almost all of the questions put to him, by reason of which he repeatedly was held in contempt.

Defendant's counsel on this appeal concedes that his trial counsel interposed no objection to the questioning of this witness. No motion was made with respect thereto. At the request of defendant, the jury was instructed that Kakuda's refusal to answer questions should be totally disregarded. No reversible error has been shown. State v. Brooks, 44 Haw. 82, 86, 352 P.2d 611.

While argument also has been presented concerning the questions and answers which established that Kakuda was, at the time of the trial, in prison for bribery, no objection or motion was made, or error assigned or specified with respect thereto, and accordingly this matter is not before us for review. State v. Foster, 44 Haw. 403, 429, 354 P.2d 960.

Defendant's second point is that: 'Prejudicial error was committed in permitting prosecution witnesses to testify to the commission of other offenses by Appellant.' This point is based on specification of error #1, which however does not meet the requirements of rule 3(b)(4) of the rules of this court, concerning the manner of presenting alleged errors as to the admission of evidence.

In the body of the brief there is quoted testimony of James _____, one of the basketball players named in the indictment, who testified at page 40 of the transcript that defendant said, during the season, that he was 'making money on all games,' and that after the last game of the season, the championship game against Punahou, witness went to defendant's house to eat dinner and on that occasion defendant said 'that he made money on that game.' This testimoney all concerned the year 1958, in which as shown by other evidence the basketball season began January 7 and ran to and including February 22. The objection to James' testimony was not that another crime was being shown but instead that there could be no proof of events subsequent to the offense charged, the occasion of which was the Maryknoll game of February 5, 1958. Specifically the objection made was 'to anything that might have been said after the Maryknoll game.'

This testimony of James' at page 40, and certain testimony of his at page 54 of the transcript reviewed below, constitute all that is furnished us in support of defendant's second point asserting error in permitting proof of other crimes. ² The evidence is not set out in the specification of errors as required by the above-cited rule; defendant's second point thus is improperly presented. Moreover, the objection actually made was to proof of subsequent events and this objection was not well taken as now shown.

According to the evidence above stated, defendant said he was making money on all games, which evidence included games subsequent to the Maryknoll game and in fact the last game in the season. It was relevant for the State to show that defendant was betting on the games for the purpose of establishing his motive for bribing players to limit the point margin in a particular game, thus strengthening the proof that defendant intended to influence the players as alleged. Defendant did not have the right to have the proof limited to betting on the Maryknoll game and prior games, which was contrary to the fact. It was proper for the prosectuion to show that at the time of the Maryknoll game defendant's plan was to bet on every game in the season, which would explain the elaborate lengths to which defendant went, as shown by other evidence reviewed below, and lend credibility to that evidence. See Territory v. Abellana, 38 Haw. 532 (evidence of holdup one hour later, part of 'a preconceived evening's undertaking of lawlessness with the weapon' admissible); Laird v. State, 156 Tex.Cr.R. 345, 242 S.W.2d 374 (two subsequent acts of barratry admitted to show systematic action in contacting injured railway employees); Lunsford v. State, 60 Ga.App. 537, 4 S.E.2d 112 (prosecution for operating a lottery, possession by defendant at house where lottery was operated of lottery tickets and paraphernalia, one day after alleged crime, admissible).

The objections made at the trial did not urge either inadmissibility of evidence of other offenses or insufficiency of proof thereof, which matters now are argued as defendant's second point. Furthermore, such contentions are not valid.

It is a mistaken notion that relevant proof is to be excluded merely because it also shows the commission of another offense. Territory v. Caminos, 38 Haw. 628; Territory v. Awana, 28 Haw. 546; Territory v. Chong Pang Yet, 27 Haw. 693; Territory v. Hamilton, 39 Haw. 14; Territory v. Alford, 39 Haw. 460; State v. Carvelo, 45 Haw. ___, 361 P.2d 45. Motive and intent may be shown even though other offenses are disclosed by the evidence. Cases cited by defendant are distinguishable on the facts or by reason of Hawaiian precedents.

That defendant was betting on all the games of the season was a relevant fact which only incidentally showed an offense by reason of betting on athletic games being forbidden in this jurisdiction by R.L.H.1955, § 288-8. If betting were lawful in Hawaii the relevancy of the proof that defendant was betting on the games would be the same. In the present instance the rule as to proof of other offenses is sought to be used as a shield for defendant against the State's case so as to exclude that which could be shown if no unlawfulness appeared. Relevant evidence cannot be excluded in this manner. Territory v. Warren, 35 Haw. 232, 236; cf. People v. Glass, 158 Cal. 650, 112 P. 281. As stated in 1 Wharton, Criminal Evidence, § 233 at 500 (12th ed.):

'If evidence is competent, material, and relevant to the issues on trial, it is not rendered inadmissible merely because it may show that the defendant is guilty of another crime. Such evidence is not admitted because it is proof of the other crime, but because of its relevancy to the charge on trial.'

In State v. Adams, 20 Kan. 311, 319, a leading case cited in Territory v. Warren, supra, 35 Haw. at page 238, there was involved a charge of...