Territory Hawai`i v. Martin, 2758.
| Decision Date | 12 June 1951 |
| Docket Number | NO. 2758.,2758. |
| Citation | 39 Haw. 100 |
| Parties | TERRITORY OF HAWAII v. WILFRED GILBERT MARTIN. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
ERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. C. H. BUCK, JUDGE.
Syllabus by the Court
Discrepancies developed in a preliminary examination upon the competency of a minor witness do not in themselves preclude such minor from qualifying unless of such a material nature that, when considered with the entire examination, they establish or tend to establish a failure of substantial compliance with the statutory requirements.
The requirement of section 9836 of Revised Laws of Hawaii 1945 that a minor witness “perfectly understands the nature and object of such declaration or affirmation * * * and the purpose for which his testimony is required” means such clear and satisfactory understanding as is realistically and relatively possible of attainment in each particular instance. It is not required that the understanding be of uniform and inflexible perfection.
Refusal to give an instruction does not constitute prejudicial error even though the instruction states a correct principle of law, when substantially the same principle is stated in another instruction given, or in one or more given instructions combined, or in all of the given instructions considered collectively.
O. P. Soares (also on the briefs) for plaintiff in error.
A. R. Hawkins, Assistant Public Prosecutor ( C. M. Hite, Public Prosecutor, and M. Chan, Assistant Public Prosecutor, on the brief), for defendant in error.
The defendant was convicted before a jury of the offense of malicious assault upon a female child under the age of twelve years with intent to carnally abuse and know her. He brings writ of error to review the judgment.
Fifteen specifications of error are assigned. Ten are relied upon. Specifications one and two relate to the admission in evidence of the testimony of two minor witnesses, the victim and her sister. The remaining eight specifications are directed to the trial court's refusal to give certain of the defendant's requested instructions. It is categorically asserted that their refusal deprived the defendant of his right to a fair and impartial trial.
Specifications one and two allege a failure of compliance with the statutory prerequisites to the qualification of the minors as witnesses and the receipt in evidence of their testimony in that: first, their testimony was not given upon their affirmation or declaration to tell the truth, the whole truth and nothing but the truth, or in some other form approved and allowed by the court; second, the minors were not cautioned that they would incur or be liable to punishment if they did not tell the truth; third, their testimony was admitted, “notwithstanding it was not proved satisfactory that said witness perfectly understood the nature and object of a declaration or affirmation to tell the truth, the whole truth and nothing but the truth,” nor the purpose for which their testimony was required.
Section 9836 of Revised Laws of Hawaii 1945 provides in part: “* * * it shall be lawful for such court or person to receive the evidence of any minor, notwithstanding he may be destitute of the knowledge of God and of any belief in religion or in a future state of rewards and punishments; provided always, that the evidence of such minor shall be given upon his affirmation or declaration to tell the truth, the whole truth, and nothing but the truth, or in such other form as may be approved of and allowed by such court or person, as first aforesaid, and after he shall have been cautioned by such court or person, that he will incur and be liable to punishment if he does not tell the truth; provided also, that no such evidence shall in any case be received unless it shall be proved to the satisfaction of such court or such person, that such minor perfectly understands the nature and object of such declaration or affirmation as aforesaid, and the purpose for which his testimony is required.” We are here concerned with the interpretation of the two provisos.
The witnesses were of the ages of eleven and fifteen years. The following excerpts from their preliminary examinations are reflected in the record. The first witness, the victim, age eleven, on direct examination testified:
“Q Do you go to church?
“A Yes.
“Q Do you go to school?
“A Yes.
“Q What school?
“A Thomas Jefferson School.
“Q What year in school are you?
“A I am in the sixth grade.
“Q Sixth grade?
“A Yes.
“Q Do you know why you are here as a witness?
“A Yes.
“Q Why are you here?
“A I am here to testify against the man that has committed a crime.
“Q You know it is wrong to tell a lie, do you?
“A Yes.
“Q You know you will be punished by God if you do tell a lie?
“A Yes.”
On cross–examination:
“Q Do you know the purpose for which you are called upon to give testimony?
“A Yes.
“THE COURT: In other words, why are you here?
“A I am here because that man has done something wrong to me.”
On redirect examination:
“Q Do you know why you are here today?
“A Yes.
“Q And why are you here today?
“A I am here to testify against a man who has done something wrong.
“Q Why are you to testify?
“A Because he has done something wrong to me.”
The second witness, age fifteen, on direct examination testified:
“Q How old did you say you were?
“A I am 15 years old.
“Q You go to church?
“A Yes, I do.
“Q You go to school?
“A Yes, I do.
“Q What grade are you in?
“A I am in the ninth grade.
“Q Do you know why you are here today?
“A Yes, I do.
“A I am here to testify against the defendant who committed a crime against my sister.”
This witness was not interrogated on preliminary cross–examination.
“The witness was sworn and testified * * *.”
A summarized pronouncement upon the interpretation and requisites of section 9836 of Revised Laws of Hawaii 1945, supra, is stated in the recently decided case of Territory v. Sabado, 38 Hawaii 486, which, applied to the facts presented by the instant record, is dispositive of specifications one and two. Referring to the prerequisites enumerated therein, the court said:
It affirmatively appears from the excerpts of the two minor witnesses above quoted, that the first two prerequisites have been complied with.
In respect to the third requirement, appellant contends that each witness has failed of compliance therewith, in that “the evidence of said witness was received notwithstanding it was not proved satisfactory that said witness perfectly understood the nature and object of a declaration or affirmation to tell the truth, the whole truth and nothing but the truth, nor the purpose for which her testimony was required.” Failure of compliance is predicated upon two grounds: first, alleged discrepancies developed in the preliminary examination and second, that the word “perfectly,” as employed in the statute, means, creates and requires a nonflexible, exacting and utterly flawless understanding on the part of a minor witness of the factual requisites of...
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