Territory Hawai`i v. Nung

• Decision Date: 07 August 1912
• Citation: 21 Haw. 214
• Parties: TERRITORY OF HAWAII v. CHUNG NUNG.
• Court: Hawaii Supreme Court

21 Haw. 214

TERRITORY OF HAWAII

v.CHUNG NUNG.

Supreme Court of the Territory of Hawai‘i.

Argued July 22, 1912.

Decided August 7, 1912.

EXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT.

Syllabus by the Court

In a case of circumstantial evidence, there being evidence of certain facts, if believed by the jury, from which facts inferences of guilt can reasonably be drawn by the jury, the verdict cannot be disturbed. In reaching its conclusion the jury 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 returned is supported by evidence as to all the essential and material elements of the crime charged.

At the time the defendant was arrested the officers, for the purpose of making an examination of his person, directed him, but without the use of any force, or threats, or the holding out of any inducement, to remove a portion of his clothing, which he did without objection. The purpose of the examination thus made was to obtain proof of a physical fact, and not to compel the defendant to be a witness against himself. At the trial of the defendant testimony by one of the officers as to the result of the examination was admissible.

A statement in the nature of a confession made by a person while in jail and before any charge is entered against him, made in the presence of the deputy city and county attorney and police officers, and without the advice of counsel, but made freely and voluntarily, is admissible in evidence.

J. W. Cathcart, City and County Attorney, for the Territory.

Lorrin Andrews ( Eugene Murphy with him on the brief) for defendant.

ROBERTSON, C.J., PERRY AND DE BOLT, JJ.

OPINION OF THE COURT BY DE BOLT, J.

The defendant was indicted on February 2, 1912 (ante p. 66), for the crime of carnal abuse of a female child under the age of twelve years, alleged to have been committed by him on December 30, 1911, upon one Lili Ulii, otherwise known as Lili Kawai. The defendant was convicted and sentenced to imprisonment for life at hard labor. He brings the case here on exceptions.

The Territory relied for conviction upon evidence, as disclosed by the record before us, from which the jury could have found facts substantially as follows: That at the time the crime is alleged to have been committed the family, of which Lili was a member, resided at Kaalaea, district of Koolaupoko; that their home was at least a quarter of a mile from the nearest habitation and about the same distance from the public road; that the family consisted of Kane Kukikila and his wife, Lily Kane, and three foster children, a boy named Kukekila, about nine years of age, Lili, about four and one-half years of age, and another little girl, named Haole, about two years of age; that the defendant was employed as cook at a rice mill near the home of this family; that about noon, on December 22, 1911, when Kukekila returned to the premises (it does not appear where he had been), the defendant was with him, and they, the defendant and the boy, and the two little girls went into the house to eat poi, while Kane Kukikila and his wife went to a shed near by to wash and cook taro, in which work they were engaged during all the time the defendant and the children were in the house; that after they had finished eating poi, the defendant sat on a trunk and placed Lili on his lap astride his legs, her back to his face, and upon her expressing a desire to get down, he said, “no, by and bye;” that she was on the defendant's lap “a long time,” as testified to by Kukekila, who, for the purpose of showing what he meant by “a long time,” sat on the interpreter's lap a minute and a half; that neither Kane Kukikila nor his wife saw the defendant leave the premises, but nearly a half hour after they had seen him enter the house with the children, the two little girls ran down to the place where they were cooking taro, saying, “five cents, five cents,” and on being asked, “where you get your five cents,” they said, “from the pake;” that on December 30, 1911, the defendant again appeared at the home of these people, on which occasion Kane Kukikila was absent, but his wife and another woman were on the verandah in front of the house, a Chinaman, Su Suey, was at the side of the house pounding poi and the children were playing in the back yard; that the defendant spoke to Su Suey and passed on to the rear of the house where, while he was resting and eating some abalone under a tree (the location not being definitely shown by the evidence), Lili ran up to him and he gave her some of the abalone and took her on his lap, placing her astride his legs, facing him, with his arms around her; that the defendant returned from the rear of the house in about thirty minutes and left the premises by the same way he had gone in; that this little girl, Lili, on the occasions mentioned, had on nothing but a little dress and chemise–she never wore drawers; that the defendant, during the period including his visits to the home of these people and his relations with this little girl, had chronic gonorrhea, which, as he admitted, he had contracted from a Japanese woman sometime prior to his visits to these premises; that on or about January 10, 1912, it was discovered that Lili was suffering from venereal disease, and upon an examination by physicians it was found that she not only had gonorrhea of a most malignant type, but that her hymen was ruptured; that in the opinion of the examining physicians, while the rupture of the hymen may be the result of various causes, in the case of small girls the fact of gonorrhea being present tends to narrow the number of causes down to that of penetration.

It does not appear that the defendant had any legitimate purpose in visiting the premises on the occasions mentioned. It is true that on the second occasion he was sent by his employer to turn on the water used in the rice mill, but it appears that his way would properly have been along the ditch and not through these premises over which there was no trail. It also appears that none of the family during the period from December 22 to December 30 had venereal disease.

The little girl, owing to her extreme youth, was not sworn as a witness. Neither did the defendant testify, and the evidence adduced on his behalf, so far as it was in conflict with the evidence of the Territory, was a matter exclusively within the province of the jury for consideration.

It is urged by counsel for the defendant that the evidence is not sufficient to sustain the verdict; that the testimony in the case, being purely circumstantial, is not inconsistent with every reasonable theory of innocence; that the jury was swayed by the eloquence of the city and county attorney; and that the verdict can only be accounted for on the ground of passion and prejudice.

The question for our determination, however, is, not whether we would or would not have convicted the defendant upon the evidence as disclosed by the record before us, but whether there was evidence sufficient to support the verdict as returned. In our opinion the evidence, when considered in connection with all the legitimate and reasonable inferences which the jury was warranted in drawing therefrom, was sufficient to support the verdict. The record fails to disclose any fact or matter tending to show that the jury was influenced by passion or prejudice. There was evidence, not...