Territory Hawai`i v. Chong
| Decision Date | 19 October 1943 |
| Docket Number | No. 2491.,2491. |
| Citation | 36 Haw. 537 |
| Parties | THE TERRITORY OF HAWAII v. EDWARD P. CHONG. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
ERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. J. A. MATTHEWMAN, JUDGE.
Syllabus by the Court
An exception to a finding of guilt solely on the grounds that the judgment is contrary to the law and the evidence and the weight of the evidence is specific enough to present the point that the evidence is insufficient to support the finding for appellate consideration as a ground for reversal under Revised Laws of Hawaii 1935, section 3563, requiring the alleged error to be made the subject of an exception.
An exception is not necessary to enable the supreme court to correct an error in the imposition of sentence.
The supreme court is empowered by section 3563, supra, to correct and modify a sentence in a criminal case before it, whether the sentence is within or beyond the scope of legislative sanction, when in the supreme court's opinion the sentence is excessive and would injuriously affect the substantial rights of the defendant.C. B. Dwight for the defendant, plaintiff in error.
C. E. Cassidy, Public Prosecutor, and J. E. Parks, Assistant Public Prosecutor, for the Territory.
The defendant was found guilty of a misdemeanor by the district magistrate of Honolulu in the violation of section 6.11 of ordinance 786 of the 1939 traffic code of the City and County of Honolulu, which deals with the taking by one motor vehicle of the right of way of another vehicle in an intersection of two public highways, and fined five dollars and costs of court. He appealed to the circuit court. The case was there tried de novo before the trial judge, jury waived. The defendant was again found guilty and sentenced to a year's imprisonment and his license to drive revoked for a period of one year. A stay of execution of sentence was obtained and the matter is now before this court on a writ of error.
Four assignments are made, specifying two alleged errors in the final judgment of the trial judge. One alleged error pertains to the finding of guilt, the other to the imposition of sentence. The record shows that the only exception pertinent to these alleged errors was the one taken to the judgment, solely upon the grounds that it was contrary to the law and the evidence and the weight of the evidence.
The Territory contends that the grounds of the exception are too general to permit appellate consideration of the alleged error in the finding of guilt within the authority of Ter. v. Jellings, 33 Haw. 103. However, before the form and sufficiency of the instant exception can be ruled upon, it first must be determined whether its taking was necessary. In regard to this preliminary phase of the issue raised by the Territory, the statute (R. L. H. 1935, § 3563) provides that in a writ of error there shall not be “a reversal in any term case * * * for any finding depending on the credibility of witnesses or the weight of the evidence * * * unless such alleged error was made the subject of an exception noted at the time it was committed.” (See Ter. v. Gagarin, 36 Haw. 1.) In that this is a term case upon writ of error and the alleged error relates to a finding depending “on the credibility of witnesses” and “the weight of the evidence,” the statutory requirement applies. Hence it follows that the general rule that an exception should be specific also applies, the object and purpose of an exception remaining constant whether the necessity for its taking arose under section 3530 of the Revised Laws of Hawaii 1935 in order to bring the alleged error before the supreme court in a bill of exceptions, or under section 3563, supra, to enable the supreme court to consider the alleged error as a basis for reversal in a writ of error. The rule is succinctly stated by the court in Ripley & Davis v. Kapiolani Estate, 22 Haw. 507, 508, as follows: “In a long line of decisions this court has held that exceptions must be sufficiently definite and specific to call to the attention of this court a point of law which was called to the attention of the trial court affecting the legality of its ruling, thus giving the lower court the opportunity to correct its ruling if erroneous.” In this rule there is discernible two functions of an exception. One is often termed its essential purpose, which is to advise the trial judge of a precise point upon which it is contended that he has committed an error of law, thereby affording an opportunity to the trial judge to change his ruling if he is satisfied as to error and thus avoid a miscarriage of justice. The other, which may be termed its ultimate objective, is to predicate the alleged error for review so that the ruling or act of the trial judge may be tested later upon the question of law as presented by the exception in determining whether prejudice was caused the excepting litigant. In applying this rule to the instant problem of appellate review, we find that the exception to the finding of guilt on the grounds that it was contrary to the law and the evidence and the weight of the evidence clearly comes within the rule and squarely presents the point of law of whether the evidence was sufficient to support the finding of guilt.
In an analagous situation, this court in Ter. v. Jellings, supra, considered the sufficiency of the evidence by expressly finding that “the verdict of the jury is amply supported and warranted by the evidence,” thus properly applying the rule consistently with a long line of its prior adjudications. In our opinion, however, the court in Ter. v. Jellings, supra, in stating that the exception is “too general for consideration by this court” did not go far enough in expressing its application of the rule in regard to the subject of the exception, or by way of clarification point out that such an exception, although specific as to error which it predicated, was too general for appellate consideration of other errors not predicated by it and hence not called to the attention of the trial judge at the time they were committed. (Territory v. Puahi, 18 Haw. 649, 655; McCandless v. Honolulu Plantation Co., 19 Haw. 239, 242; see Fraga v. Portuguese Mut. Ben. Soc., 10 Haw. 128, 129; Ripley & Davis v. Kapiolani Estate, supra; Kapela v. Gilliland, 22 Haw. 655, 659;De Freitas v. De Freitas, 25 Haw. 717, 718.)
The form and sufficiency of the exception therefore properly places before this court the question of law as to the sufficiency of the evidence, which we will consider, the question of the credibility of the witnesses remaining within the province of the court below. The defendant was convicted upon conflicting evidence and we find from our examination of the record that there is competent and substantial evidence to support and warrant the trial judge's finding of guilt. For this reason, the allegations of error in regard to the finding of guilt are without merit, which disposes of assignment one and those portions of assignments two and three which relate thereto.
We will now turn our attention to the alleged error in the imposition of sentence as specified by the remaining portions of assignments two and three and by assignment four.
Section 3563, supra, provides that the supreme court in a writ of error “may correct any error appearing on the record,”...
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