Territory Hawai`i v. Gusman, 2486.
| Decision Date | 25 April 1942 |
| Docket Number | No. 2486.,2486. |
| Parties | TERRITORY OF HAWAII v. LUCY MENDES GUSMAN. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
ERROR TO CIRCUIT COURT FOURTH CIRCUIT. HON. J. FRANK MCLAUGHLIN, JUDGE.
Syllabus by the Court
In a trial for assault and battery involving a stabbing, a question as to the reason for the stabbing held improper as calling for the conclusion of the witness.
The common law right of confrontation as preserved by the Constitution has not been infringed where it is shown that the defendant has once had the opportunity to meet the witness face to face and to cross-examine him.
Secondary evidence in the form of a duly certified transcript of testimony taken in a preliminary hearing of a material witness, who later becomes unavailable to the process of court, is subsequently admissible against the defendant in his trial after an indictment for the same offense when it further appears that the defendant was also present at the preliminary hearing, faced and heard the witness and exercised through his attorney his right of cross-examination.
W. C. Achi for defendant-appellant.
M. Pence, County Attorney, County of Hawaii, and Deputy Attorney General, for plaintiff-appellee.
The defendant was convicted in the lower court, jury waived, upon an indictment charging an assault and battery upon one Joseph Gild with a weapon obviously and imminently dangerous to life and has perfected her appeal to this court.
After a most careful consideration of all the exceptions, it is apparent that only one question deserves serious discussion and will be dealt with later. The other matters raised are typified by appellant's first exception alleging error to the lower court's ruling in sustaining an objection of the Territory to a question propounded by the defense in cross-examination of one of the Territory's witnesses upon the ground that the question called for a conclusion of the witness. The pertinent part of the question was as follows: “Can you state anything else with reference to the reason for the stabbing?” The record shows that the prior testimony of the witness was factual and contained no reasons or conclusions whatsoever.
The law is well settled that a witness cannot give his conclusions, otherwise he would deprive the jury or trier of the facts of its function so to do. ( Rex v. Tin Ah Chin, Cheong Kam Ford, Lauon, and Agnee, 3 Haw. 90; Dickey v. State, 102 So. 239, 20 Ala. App. 367.) Consequently, no error was committed by sustaining the prosecution's objection and it might be noted that the defense was not precluded from a proper continuation of its cross-examination.
Exceptions 5 and 6 present the one question really meriting discussion. The question thus raised concerns the admissibility of the transcript of the evidence of Joseph Gild before the committing magistrate in the preliminary hearing on February 26, 1941. To a proposed offer of the transcript, the defense interposed the sole objection that “the hearing before the District Magistrate was merely a preliminary hearing * * * and therefore incompetent, irrelevant and immaterial.” The record shows that the prosecution had, prior to the offer of the transcript, introduced into evidence without objection from the defense a subpœna which showed on its face that due and diligent search had been made for Joseph Gild but that he could not be found within the county of Hawaii and the subpœna was returned unserved on April 5, 1941. This was followed by testimony showing that Joseph Gild was a soldier in the United States Army, stationed at the Kilauea Military Camp on the island of Hawaii until March 21, 1941, when he went to Honolulu upon orders from his commanding officer to return to the mainland of the United States, leaving Honolulu on April 2, 1941, and that at the time of the commencement of the trial on April 7, 1941, he was either on the high seas en route to the mainland or had already arrived at San Francisco, California.
Preparatory to offering the transcript, the prosecution called Natsuyo Taketa, the assistant clerk and acting court reporter of the district of South Hilo, who testified that she took full and complete stenographic notes in shorthand of the sworn testimony of Gild in a preliminary hearing before the district magistrate and certified that the notes were truly and correctly transcribed. The assistant clerk also testified that at the time the testimony was taken the defendant was present with her attorney and cross-examined Gild and it may be noted at this time that the transcript itself reflects rather an extensive cross-examination by the defendant's attorney.
When the transcript was offered in evidence, the defense made no objection other than the one previously made to the effect that because the hearing was a preliminary one, the testimony before it was inadmissible and not binding upon the defendant.
The defense for the first time upon appeal raises the question of lack of diligence on the part of the prosecutor in his attempt to produce the witness. It is obvious that the opportune time to have presented this question was in the lower court. Not having been called to the attention of the trial court, it must...
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