Territory Hawai`i v. Masagi

• Decision Date: 07 November 1904
• Parties: TERRITORY OF HAWAII v. WATANABE MASAGI AND FUNAKOSHI TATSUGORO.
• Court: Hawaii Supreme Court

16 Haw. 196

TERRITORY OF HAWAII

v.WATANABE MASAGI AND FUNAKOSHI TATSUGORO.

Supreme Court of the Territory of Hawai‘i.

Argued October 10, 1904.

Decided November 7, 1904.

EXCEPTIONS FROM CIRCUIT COURT, FOURTH CIRCUIT.

Syllabus by the Court

The practice of referring to papers filed in a case as part of a bill of exceptions instead of incorporating in the bill copies of papers relied upon is objectionable.

The court can not pass upon exceptions not presented by the papers in the case. If papers relied upon which were on the files are not there, the defendants' attorneys, on discovering their absence, should apply to the trial court to replace them. A new trial is not granted on a bill of exceptions on the ground of absence of papers relied on in the bill.

The bill of exceptions making the transcript part of itself, a discrepancy between the two may properly be resolved in favor of the correctness of the transcript, which was made from stenographer's notes taken at the time.

It was discretionary with the court whether to order a separate trial of the two defendants charged with the murder of one M. K. The evidence does not show that a joint trial was prejudicial to either defendant, following The King v. Paakaula, 3 Haw. 30; Rex v. Tin Ah Chin, Ib. 90.

It is neither requisite nor proper to present for the consideration of the exceptions in this case the exhibits, such as swords, kimonos, etc., which were filed in the trial court.

It is not error to admit evidence of facts showing motive, or which are part of the transaction, or exhibit a train of circumstantial evidence of guilt, although such facts showed former offenses of the defendants.

It is not error to disallow on cross-examination a question asked for the purpose of laying a basis to impeach the witness on an immaterial matter.

It was not an abuse of discretion by the court to allow a trained chemist to testify of his analysis of charred cloth, in which he found, as he said, that there had been blood, whether human or not, he could not say.

The question of the legality of a view of premises by the jury and of statements there made by the sheriff and deputy sheriff to the jurors in answer to their questions concerning the condition of things as they first found them there is not presented by any of the exceptions in this case, a view in criminal cases said, however, to have been the practice in Hawaii as at common law.

It was proper for the court to ask a medical expert whether an ordinary man in inflicting upon himself a wound (described in the question as in the evidence) would be most likely to use his right hand or his left hand.

It is erroneous to allow hypothetical questions unwarranted by any testimony in the case. A question to a medical expert was properly ruled out which required him to say on the hypothesis named to him “whether or not that wound could have been inflicted by the man himself,” the facts assumed being of a nature not calling for an expert opinion.

The evidence in this case fully sustains the verdict of manslaughter which was rendered.

Because of evidence on which doubt of guilt might be based, the court can not say that such doubt ought to have been produced in the minds of the jury.

A general exception to a sentence, stating no grounds for the exception, does not present a question of law upon the legality of the court pronouncing sentence without first asking defendants if they had anything to say why sentence should not be pronounced.

M. F. Prosser, Deputy Attorney General, for prosecution.

Cathcart & Milverton and George A. Davis for defendants.

FREAR, C.J., HARTWELL AND HATCH, JJ.

OPINION OF THE COURT BY HARTWELL, J.

The defendants were tried at the January Term, 1903, of the Fourth Circuit Court held at Hilo, Island of Hawaii, Little J., presiding, upon an indictment charging them with the murder of one Motohiro Kitaro, January 25, 1902. The indictment charged murder in the first degree. The jury rendered a verdict finding the defendants guilty of murder in the second degree. The court sentenced the defendant Funakoshi Tatsutaro to imprisonment at hard labor for thirty years and the defendant Watanabe Masagi to imprisonment at hard labor for twenty-five years.

The bill of exceptions, following the practice which has long prevailed here, although unauthorized in many other jurisdictions, does not incorporate in itself copies of the pleadings, motions, instructions and exhibits filed in the trial court, and intended to be relied on, but refers to those papers and recites that “said defendants hereby refer to, incorporate herein and make a part of this bill of exceptions all records, papers, files, affidavits, exhibits, testimony, stenographer's notes, stenographer's transcripts and other papers and documents in said cause the same as if they and each of them were actually set out herein in words and figures;” and prays that the bill of exceptions be allowed, and that the above mentioned records and other papers “be expressly made a part of this bill of exceptions and incorporated herein as fully and completely as if they and each of them were actually set out herein in words and figures.”

The trial judge allowed the bill of exceptions, ordering that the records and papers above mentioned, and specifically mentioned in the order, be “made a part of said bill of exceptions and incorporated therein as fully and completely as if they and each of them were actually set out therein in words and figures.”

The practice is open to serious objections which are evident in this case, in which it appears that several of the papers above mentioned are not now before us. The plaintiff claims that the following papers are missing, namely: Two motions to quash the indictment, motion for separate trial of Watanabe, motion for continuance of trial, challenge to array of trial jury, instructions to the jury; Exhibit “A,” being map or plan which was used in evidence, also the following additional exhibits, viz.: “B” and “C,” swords; “D,” “E,” kimonos; “F,” piece of cloth; “G,” “K,” pants; “I,” shirt; “J,” knife. Copies, however, are now filed of the motions for separate trial and continuance and their accompanying affidavits, sworn to by one of the attorneys of the defendants at the trial. The transcript of the evidence and proceedings states that the defendants were arraigned January 14, 1903; that the indictment was read and translated to them; that the case was set for trial on Monday, the 19th, at 10 o'clock, the plea to be heard at 9 o'clock; that on Thursday, January 15th, the time to plead was set for 1:30 p. m. of “Friday the 17th,” (that day being the 16th). The transcript thereupon reads as follows:

“Friday P. M., January 16th, 1903.

MR. ROSS. In this case we have filed a motion to quash the indictment.

Both defendants present in court.

Mr. Ross reads the motion.

THE COURT. Motion overruled.

MR. ROSS. We note exception on this.

THE COURT. No.

MR. ROSS. Your honor certainly will allow us an exception.

THE COURT. Well, exception allowed.

THE COURT. Are you ready to plead?

MR. ROSS. Yes, sir.”

The record of the clerk of the Fourth Circuit Court, a certified copy of which is before us, does not state that the motion was filed, but reads: “A motion by the attys. for the defense to quash was denied by the Court, and the defendants entered a plea, not guilty.”

The transcript on the subject of the second motion to quash, and also on the motions for separate trials and continuance, reads as follows:

“Monday, A. M., January 19th, 1903.

MR. W. H. SMITH. We desire to withdraw the plea made the other day in order that we may make a motion.

D. ATTORNEY GENERAL. We will object. Not timely and that they had already entered a plea of not guilty thus putting themselves upon the country for trial.

THE COURT. Let me know what the motion is.

MR. W. H. SMITH. The motion we would desire to file subsequent to the withdrawing of the plea, if we be allowed to do so, would be a motion to quash on the three grounds presented the other day and another ground, that the grand jury which drew the indictment was not drawn in accordance with the law and therefore the indictment is null and void.

THE COURT. Motion overruled.

MR. LE BLOND. We would like an exception to the overruling of the motion.

THE COURT. Exception allowed.

11:00 A. M., Monday, January 19th, 1903.

Mr. Le Blond presents motion for separate trial of Watanabe Masagi, together with affidavit of Watanabe Masagi.

Argument.

DEPUTY ATTORNEY GENERAL. No time to file counter affidavits; affidavits presented at 10 o'clock.

THE COURT. Be ready for trial at 1:30 without fail.

Argument by Deputy Attorney General.

Session suspended until 1:30 P. M.

Afternoon session opened at 1:30.

Argument by Deputy Attorney General continued.

Argument by Mr. Le Blond.

THE COURT. Overrule motion for severance. Proceed on the trial of both of them.

MR. LE BLOND. Will the court allow us an exception?

THE COURT. Allow the exception.

MR. ROSS. If the court please, in the case now on trial we have filed a challenge to the array of the jury; also have served copy on the prosecution.

Mr. Ross reads affidavit of C. M. Le Blond attached to challenge.

MR. ROSS. I would like to make the change from grand jury to trial with the consent of the affiant before the notary.

THE COURT. Make the change.

THE COURT. Challenge overruled on the ground the venires speak for themselves. I decline to hear any evidence in the matter whatever, for the same reason that the record speaks for itself.

MR. ROSS. Exception to the ruling of the Court in refusing to permit us to introduce evidence at this time and also to the ruling of the court on the challenge.

The defense moves for continuance of trial on account of absence of material witnesses, eighteen miles away, and the court overrules the motion, which is on file, on the ground of sufficient time allowed to get the witness here.

MR. LE BLOND. We note exception.

THE COURT. Exception allowed.

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