Territory Hawai`i v. Young

• Decision Date: 01 October 1945
• Docket Number: No. 2545.,2545.
• Citation: 37 Haw. 189
• Parties: TERRITORY OF HAWAII v. PETER L. YOUNG AND HILDA M. NOZAWA.
• Court: Hawaii Supreme Court

37 Haw. 189

TERRITORY OF HAWAII

v.PETER L. YOUNG AND HILDA M. NOZAWA.

No. 2545.

Supreme Court of the Territory of Hawai‘i.

Submitted August 17, 1945.

Decided October 1, 1945.

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

Syllabus by the Court

Where, upon a preliminary hearing to determine the voluntary character of a confession, the evidence is conflicting, findings of fact by the court, if supported by more than a mere scintilla of evidence, are conclusive upon the question of preliminary admissibility.

A confession otherwise shown to have been voluntary is not rendered inadmissible by the fact that its author was under arrest or in custody at the time even though the arrest or custody may have been under invalid process or without any process or legal right.

Where, in a criminal case, the determination by the court of a pending motion to suppress evidence seized by the police is, with the express approval and consent of the movant, held in abeyance, the action of the court, if error, was invited and will not be considered. Nor will the court consider error favorable to the party complaining.

Findings of fact upon motion to suppress evidence left undisturbed.

A homicide, the result of a criminal abortion, the subordinate crime of abortion being a felony, constitutes murder in the second degree.

F. Patterson and E. J. Botts for plaintiff in error.

W. Z. Fairbanks, Public Prosecutor, and J. E. Parks, Assistant Public Prosecutor, for defendant in error.

KEMP, C. J., PETERS AND LE BARON, JJ.

OPINION OF THE COURT BY PETERS, J.

The defendants were indicted jointly and upon a joint trial were convicted of the crimes of abortion and murder in the second degree. The offenses charged are based upon the same transaction and are alleged in separate counts. The within joint writ of error presents for review the judgment entered upon the verdict.

Upon arraignment the defendant Nozawa interposed a demurrer to the second count of the indictment, which charged murder in the second degree upon the single ground that the allegations thereof did not state facts sufficient to constitute the crime of murder in the second degree as made and provided by the laws of the Territory of Hawaii and in particular as made and provided by sections 5990 to 5992, both inclusive, and by section 5996 of the Revised Laws of Hawaii 1935. The demurrer was overruled.

After the trial was commenced the defendant Young filed a motion to suppress certain evidence, to wit, instruments, office records and a medical book taken by the police from his office on September 28, 1942, ruling upon which motion, by agreement between counsel for defendants and the court, acquiesced in by the prosecuting officer, was abated pending the conclusion of the evidence. The taking of evidence having been concluded, in the course of which the evidence sought to be suppressed had been admitted in evidence over the objection of defendants, the defendant Young, preliminary to resting, renewed his motion to suppress and the same was denied.

Plaintiffs in error in their opening brief specify the following errors: (1) that in the course of the trial the court erred in admitting in evidence, over objection, exhibits 8 and 9, being purported statements of Hilda M. Nozawa to the police; that the court erred in denying defendants' motion to strike exhibits 8 and 9, it affirmatively appearing that said statements were not voluntary and their use in said trial prejudicial to the said defendants, particularly the said Peter L. Young; (2) that the court erred in denying the motion of defendant Peter L. Young to suppress certain evidence obtained by the police as a result of an unauthorized and illegal search of his premises on September 28, 1942; (3) that the court erred in overruling demurrer to the indictment herein, said demurrer being directed to the second count of said indictment which charged the defendant with the crime of murder in the second degree.

The specifications of error will be considered in their order.

1. This specification of error presents for review the admissibility in evidence of two incriminating statements made by the defendant Nozawa to the police on September 29, 1942, claimed by plaintiffs in error to be factually and legally involuntary.

At the time these statements were made by the defendant Nozawa no warrant of arrest had been issued against her; she had come to the police station voluntarily at about 8 o'clock p. m. on September 28 preceding, but shortly after her arrival had been arrested for investigation under the provisions of Revised Laws of Hawaii 1935, section 5404, incorporated in the 1945 revision as section 10705, and detained at the police station. On the next day, September 29, 1942, while she was thus under arrest and detained at the police station, her statements were taken, the first in the morning beginning at 9:37 o'clock (admitted as prosecution's exhibit 8), the second in the afternoon beginning at 2:15 o'clock (admitted as prosecution's exhibit 9). They take the form of interrogations propounded by a police detective and answers given in reply by Miss Nozawa, stenographically reported by an official reporter of the police department. The second statement is substantially the same as the first. The subjects of interrogation are the same in both. In many instances the questions propounded are the same. The occasion for repetition was the presence in the first statement of reference to another pending criminal case against the defendants upon a charge of abortion and the desire on the part of superior authority that all reference to the other case be omitted.

Revised Laws of Hawaii 1935, section 3834 (now R. L. H. 1945, § 9846), provides: “No confession shall be received in evidence unless it shall first be made to appear to the judge before whom the case is being tried that such confession was in fact voluntarily made * * *.” We assume that the term “confession” as used in the statute quoted includes incriminating statements. The Territory, as part of its case in chief, assumed the duty imposed by the statute. Upon the statements being offered in evidence by the prosecution, the court, at the request of the defendants, received in the absence of the jury the evidence of the defendant Nozawa, the author of the statements, tending to show that the statements were not voluntarily made. The preliminary hearing having been concluded, the statements were admitted in evidence over the objections of the defendants. The preliminary evidence offered on behalf of the defendants was repeated in the presence of the jury as a part of the defendants' case in chief.

Incriminating statements, to be admissible in evidence, must be voluntary. The adverb “voluntarily” as applied to the admissibility in evidence of extrajudicial confessions has been construed by this court¹ as inclusive of the several tests prescribed by the leading authorities on evidence.²Whether a confession is voluntary is, however, a mixed question of law and fact.³ And where a preliminary hearing is had to determine the admissibility of a confession, it becomes the duty of the court to find the facts and to apply to the facts so found the legal tests of admissibility. In so doing the court acts as a trier of the facts and, where the facts are not in conflict, determines the admissibility of the confession as a matter of law. But where, as here, the evidence is conflicting, the findings of fact of the court, if supported by more than a mere scintilla of evidence, are conclusive upon the question of preliminary admissibility. ⁴ The situation is analogous to the trial of a term case, jury waived. The rules of law giving support to the findings of fact of a judge at term, jury waived, are equally applicable. In this jurisdiction the rule has been recognized that although a court may, upon a hearing preliminary to the admission of a confession in evidence, determine that the confession was freely and voluntarily made where the evidence is conflicting, the ultimate determination of its voluntary character is for the jury.⁵ And the question of whether the statements made by Miss Nozawa were voluntarily made was left to the ultimate determination of the jury upon proper instructions.

The Territory, upon its case in chief, sustained the burden of proof imposed upon it by section 3834, supra. Upon the preliminary hearing, the defendant Nozawa testified that the answers given by her in both statements were false; that previous to making her statements she had been importuned both by the police matron and by the detective, who subsequently took her statements, to side with the police; that they had stated to her that it was not against her but against her codefendant Peter L. Young that their efforts were directed; that she had been told by the detective who subsequently interrogated her what to say and had been admonished by him to answer questions only in the affirmative or negative and that if she were in doubt as to how she should answer and indicated such doubt her interrogator would repeat the question, in which event her answer should be in the affirmative; that she was under a nervous strain due to her detention the previous evening in the women's cell block, to the conditions there obtaining and to her own physical condition; that she had wanted to go home and that the detective who arrested her and subsequently interrogated her had promised that as soon as her statement was taken she would be allowed to go home. This evidence had been anticipated by the defense upon the cross–examination of the prosecution's witnesses and had been denied by them.

It was the exclusive province of the court upon the issue preliminarily presented to it to determine the weight and credibility of the evidence. Moreover, in addition to the oral evidence adduced, he had an opportunity of personally observing the relative mental and physical qualifications of the parties to...