Territory Hawai`i v. Hart, 2419.

• Decision Date: 22 August 1940
• Docket Number: No. 2419.,2419.
• Citation: 35 Haw. 582
• Parties: THE TERRITORY OF HAWAII v. HARRY HART.
• Court: Hawaii Supreme Court

35 Haw. 582

THE TERRITORY OF HAWAII

v.HARRY HART.

No. 2419.

Supreme Court of the Territory of Hawai‘i.

Submitted July 22, 1940.

Decided August 22, 1940.

ERROR TO CIRCUIT COURT FIRST CIRCUIT. HON. A. M. CRISTY, JUDGE.

Syllabus by the Court

In a case of circumstantial evidence, if there is any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture as to the existence of the fact in issue, it is for the jury, or the court when the jury is waived, to say whether they are convinced beyond a reasonable doubt of such fact and of defendant's guilt.

When the evidence is conflicting, the jury, or the court when the jury is waived, is at liberty to accept and act upon the evidence consistent with the theory of guilt and to reject the evidence inconsistent therewith, provided the verdict of the jury, or the conclusion of the court in a jury-waived case, is supported by the evidence as to all the essential and material elements of the crime charged.

E. J. Botts for defendant, plaintiff in error.

C. E. Cassidy, Public Prosecutor, and W. Z. Fairbanks, Assistant Public Prosecutor, for the Territory.

COKE, C. J., PETERS AND KEMP, JJ.

OPINION OF THE COURT BY KEMP, J.

Harry Hart and Edith Parker were jointly indicted by the grand jury of the first judicial circuit of the Territory of Hawaii for the crimes of abortion and manslaughter arising out of the miscarriage and death of one Misao Beppu. The indictments contained four counts: Count I, charging that said defendants committed an abortion on said Misao Beppu, a woman quick with child; count II charged an abortion on said Misao Beppu, a pregnant woman not quick with child; and counts III and IV charged the crime of manslaughter arising out of said abortion and the resulting death of said Misao Beppu.

Motions for separate trials were granted said defendants; the defendant Harry Hart was tried before the Honorable Albert M. Cristy, jury waived, and found guilty of the crime of abortion on a woman quick with child and also of the crime of manslaughter.

This cause is now before this court upon a writ of error sued out by the defendant Harry Hart. The transcribed oral decision of the trial judge follows:

“Mr. Hart, from the evidence in this case there is no dispute whatsoever but what Misao Beppu died as the result of a criminal abortion.

“That being so, the Court does not have to recite any reasons for finding that death was so caused. The evidence is clear and undisputed upon that point; and from the lips of credible witnesses.

“In the two crimes you have been charged with in the various counts, to-wit, manslaughter and abortion, The Court is faced with just one problem. That is whether there is any reasonable doubt as to you being a participant in the death which occurred as the result of a criminal abortion.

“I have no hesitation in saying at this time that the only doubt the Court could entertain on this evidence is whether you were the principal or merely an accessory. Under the statutes found in Section 5340 and up to Section 5343, dealing with accessories, it is not necessary for the Court to make a finding as to whether you were the wielder of the instrument or an accessory to the extent of merely procuring the job to be done. That either you or Mrs. Parker, or both, were participants, it seems to me, is established beyond a reasonable doubt by this evidence.

“And I come to that conclusion in a very simple way. First, I must state in your presence that the Court is faced with the necessary conclusion of a reasonable person facing this evidence, that neither your testimony nor Mrs. Parker's testimony is credible in all of its features; that both you and Mrs. Parker have been indulging in incriminations and recriminations of a character which under the circumstances of the case tear away from it any rational belief in its consistency.

“The Court, being faced with that feature, and taking into consideration your entire mental collapse from the moment of the occasion on January 14, when you were apprehended at the hotel, is faced with another necessary conclusion, and that is that your conduct belied your words.

“The Court has no hesitation in saying to you there can be a confession by conduct as well as a confession by words. And that confession amounts at least to this: You were either a participant with knowledge of what was going on or were an accessory procuring the eventuality that resulted to this young lady; and were engaged in a dirty business.

“The Court therefore finds you guilty of manslaughter and also finds you guilty of a criminal abortion upon a woman quick with child, and adjudges you guilty of those two offenses in the respective counts.”

All assignments of error except those which allege that the evidence was insufficient to sustain a conviction have been abandoned.

The trial court found from the evidence that it was clear and undisputed that Misao Beppu died as the result of a criminal abortion. We shall not here record the evidence upon which the foregoing conclusion was reached. It is sufficient to say that the defendant does not question the correctness of the finding that Miss Beppu died as the result of an abortion but he does attempt an argument to the effect that the evidence fails to establish the allegation that the abortion was not performed for the purpose of saving the life of Miss Beppu. But, as we understand his argument, he finally admits that it was not necessary to prove this allegation for the reason that there is no presumption of good faith or legitimate purpose where a layman performs an abortion. He further admits that the established circumstances indicate the absence of the element of lifesaving and finally that it would be poor policy or strategy on his part to advance a plea in confession and avoidance, a plea that he may have performed the abortion on Miss Beppu but that if he did he was trying to save her life. We agree with the defendant that the established circumstances indicate the absence of the element of lifesaving. It will, therefore, be unnecessary for us to discuss this phase of the case further.

The only question seriously presented by the defendant is the question of the sufficiency of the evidence to connect him with the commission of the crime which he admits the evidence shows was committed by someone. In an effort to create doubt as to his own guilt, he attempts to cast suspicion upon the physician who moved the deceased from the hotel, where she had resided for the four or five days she had been in Honolulu since leaving her home on Maui, to the hospital where she later died, although counsel stipulated at the trial that such physician never saw her until the night of her removal and defendant admitted to the police that deceased told him, in effect, that the reason she asked him to help her out of her difficulty was that she did not have money enough to procure the services of a physician. He also argues that it would be just as reasonable to conclude from the established circumstances that someone on Maui was the guilty party, although the evidence of several witnesses, including defendant himself, indicates that the deceased was in normal health when she came to Honolulu, and remained so for two or three days thereafter. The defendant testified that the deceased, a total stranger, called him to her hotel shortly after her arrival in Honolulu and told him that she was pregnant and “wanted to get rid of it”; that he...