Territory Hawai`i v. Johnson

• Decision Date: 27 May 1905
• Citation: 16 Haw. 743
• Parties: TERRITORY OF HAWAII v. ENOCH JOHNSON AND JONAH KUMALAE.
• Court: Hawaii Supreme Court

16 Haw. 743

TERRITORY OF HAWAII

v.ENOCH JOHNSON AND JONAH KUMALAE.

Supreme Court of the Territory of Hawai‘i.

Argued April 17, 1905.

Decided May 27, 1905.

EXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT.

Syllabus by the Court

The provision of Act 32, Sec. 7, Laws of 1903, that there may be one or more sessions of the circuit court of the first circuit at the same time and that each session may be held by one of the judges, is not in conflict with the Organic Act.

If any error was committed in striking defendants' motions to quash the indictment and challenges to the grand jury from the files, it was harmless for the reason that the grounds upon which they were based were afterwards made the subject of a plea in abatement, which was considered on its merits.

When Winfred H. Babbitt appeared and served as a grand juror in response to a summons to Winnifred H. Babbitt, the variance was not fatal, as the names are within the rule of idem sonans.

The finding “a true bill” signed by the foreman of the grand jury, although at the foot instead of on the back of the indictment, is an “indorsement” within the meaning of rule 17 relating to grand juries.

A conspiracy to commit a criminal offense of lower grade than the conspiracy is not merged in such offense when completed.

Although two independent offenses cannot be charged as such in the same count, it is usual and proper to set forth in an indictment for conspiracy the acts done in pursuance of the conspiracy, and it is immaterial that such acts constitute an offense, provided they are charged merely by way of aggravation or otherwise as done in pursuance of the conspiracy, and not as an independent offense.

The constitutional provision for a speedy trial was not violated by a refusal to proceed at once with the trial and a continuance to the next term, when the request to proceed was made on Monday of the last week of the term, the day on which the plea of not guilty was made, and the next term began the following Monday.

A plea of not guilty waives objections to grand jurors, and a refusal of leave to withdraw such plea for the purpose of filing a plea in abatement based on the ground that one of the grand jurors was disqualified is within the discretion of the trial court, not subject to reversal except in case of abuse.

Conspirators jointly indicted are not entitled to separate trials of right, and a refusal to allow them to be tried separately is within the discretion of the trial court, not subject to reversal except in case of abuse.

An exception to the overruling of a motion to quash a special venire of trial jurors based on irregularities alleged to have been made at previous terms affecting the list of names in the trial jury box, cannot be considered when the records alleged to show such irregularities are not brought to this court.

A juror is not necessarily disqualified because he has an opinion which it would require evidence to remove. The question is whether he could decide fairly and impartially on the law and the evidence in the case, and that is a question largely in the sound discretion of the trial judge.

A document having been admitted against one objection and then excluded upon another objection being presented, the error, if any, in admitting it is held to have been cured.

A warrant paid two days after the alleged conspiracy which had for its object the obtaining of the money so paid is admissible on a charge of the conspiracy.

On the trial of a member of the house of representatives for conspiracy, remarks made by him in the house may be shown by the testimony of one who heard them; the house journal is not the only evidence of what was said.

A specific objection, which was not well founded, having been made in the trial court to the admission of certain evidence, other objections, presented for the first time in this court, will not be considered.

Various matters more fully set forth in the opinion are held, without stating reasons, to have been properly admitted in evidence in this case.

A remark by the court in response to an objection by the defense that certain testimony had not been given at a former trial, that he thought that certain other somewhat similar testimony referred to in an amended question put by the prosecution had been given at the former trial, is held not to have been reversible error, especially when, upon further objection that the question was not proper cross-examination, the question was disallowed.

An exception to the portion of the charge given by the court of its own motion or to the portion given at the request of the prosecution, when each such portion is made up of a number of distinct instructions which are not objected to as a whole, is too general to be considered.

The commission of a gross cheat in pursuance of a conspiracy may be shown in support of the charge of conspiracy, as bearing on the question of intent.

Various instructions requested by the defense and more fully set out in the opinion are held, without stating reasons, to have been properly refused.

It is not error to refuse to instruct the jury that they should be especially careful to avoid being unduly influenced by proof of a gross cheat into the belief that a conspiracy to commit gross cheat had been proved, especially when the jury had been instructed that the defendants were charged with conspiracy alone and not gross cheat.

Instructions which are inapplicable to the evidence, even though theoretically correct, may properly be refused.

An error which was evidently made inadvertently in one instruction purporting to give the prosecution the benefit of a reasonable doubt, is held cured by other clear and correct instructions on the subject of reasonable doubt.

L. Andrews, Attorney General, and W. S. Fleming, Assistant Attorney General, for the prosecution.

C. W. Ashford and A. S. Humphreys for defendants.

FREAR, C.J., HARTWELL AND WILDER, JJ.

OPINION OF THE COURT BY FREAR, C.J.

The defendants were jointly indicted for conspiracy in substance as follows: That Kumalae, a member of the house of representatives and chairman of a special committee on the “Chinese Fund,” and Johnson, an attorney, conspired to defraud the Territory by falsely representing to the standing committee on accounts that Johnson had been engaged as clerk of said special committee and had performed certain services for it and rendered a legal opinion to it and that by reason thereof there was due him from the Territory $312.50, and that through false representations so made they procured an approval of the bill and a warrant for the payment thereof and afterwards obtained payment thereof from the Territory. The defendants were found guilty of conspiracy in the first degree and now bring the case here on twenty-five exceptions.

The first point presented by counsel, which is presented at considerable length, is that the trial court was irregularly constituted in that it was presided over by only one of the three judges of the circuit court of the first circuit instead of by all three judges sitting together as required, according to the defendants' contention, by sections 81 and 83 of the Organic Act of the Territory, which may be considered as in the nature of constitutional provisions. This point does not seem to have been raised in the trial court or made the ground of exception. Even if it had been raised and properly brought here it could not be sustained, for it is expressly provided by Act 32, section 7, Laws of 1903, that there may be one or more sessions of the court at the same time, and that each session may be held by one of the judges. This provision is not in conflict with the Organic Act as we understand it.

The first exception was taken to an order to strike from the files the defendants' separate motions to quash the indictment and their joint challenge to the panel of the grand jury and also their amended joint challenge to the grand jury. This order was based, as we infer, upon the reason that the grounds of these motions and challenges were not proper subjects for such motions and challenges but were proper subjects for a plea in abatement. Whether this was so or not as to all of the grounds set forth it is unnecessary to say, for if there was any error in striking the motions and challenges from the files it was harmless for the reason that such grounds were afterwards made the subject of a plea in abatement, which was considered upon its merits and to the overruling of which the next exception was taken, which will now be considered.

The second exception was taken to the overruling of the defendants' joint plea in abatement, which was based on a number of grounds, only two of which are now relied on by the defendants. One of these is that Winfred H. Babbitt served as a member of the grand jury which found the indictment, whereas no such name, but the name Winnifred H. Babbitt, was certified by the jury commissioners, written on a slip of paper, placed in the jury box, drawn from the jury box, placed in the grand jury box, drawn from the grand jury box and listed among those to be served and summoned as grand jurors. Assuming that these facts sufficiently appear in the record and that the variance in the names, if material, could be taken advantage of notwithstanding the provision of section 1795 of the Revised Laws that no person shall take advantage of any irregularity in the drawing, summoning, returning or empanelling of grand or trial jurors “unless it clearly appears that he was injured by such irregularity,” we are of the opinion that the names in question are similar enough to fall within the rule of idem sonans. The surnames and middle initials are identical and the Christian names are of the same derivation and for the most part spelled the same way and so similar in pronunciation as to be readily understood the one for the other. They are more nearly alike in spelling and sound than many names that have been held to be...