Territory Hawai`i v. Van Culin

• Decision Date: 25 June 1942
• Docket Number: Nos. 2469 and 2470.,s. 2469 and 2470.
• Citation: 36 Haw. 153
• Parties: TERRITORY OF HAWAII v. SAM VAN CULIN.
• Court: Hawaii Supreme Court

36 Haw. 153

TERRITORY OF HAWAII

v.SAM VAN CULIN.

Nos. 2469 and 2470.

Supreme Court of the Territory of Hawai‘i.

Argued May 6, 1942.

Decided June 25, 1942.

ERROR TO CIRCUIT COURT FIRST CIRCUIT. HON. H. E. STAFFORD, JUDGE.

Syllabus by the Court

Where at the outset no objection is made nor exception taken to questions propounded by a trial judge to the defendant, while a witness on his own behalf, and only upon the examination becoming hostile and indicating a change from the legitimate functions of a judge to those of a prosecutor, an objection is interposed and a motion is made for a mistrial upon the ground of misconduct on the part of the trial judge, an exception to the denial of the motion presents for review all the prior behavior of the trial judge of which the particular act or conduct objected to is but a part.

Where in a criminal case the defendant is a witness on his own behalf, if upon questions propounded by the trial judge to the defendant he intimates an opinion upon the facts, assumes the defendant's guilt, or uses any expression calculated to prejudice the rights of the defendant, such behavior constitutes misconduct and the defendant is entitled to a new trial.

J. V. Esposito (also on the briefs) for defendant, plaintiff in error.

J. R. Desha, Assistant Public Prosecutor, K. E. Young, Deputy Attorney General, C. E. Cassidy, Public Prosecutor (H. Lee with him on the briefs), for the Territory.

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

OPINION OF THE COURT BY LE BARON, J.

The defendant was convicted upon two indictments tried concurrently before a jury in the court below, which charged him with the embezzlement of certain funds entrusted to him as an agent for the purpose of building an apartment house in Honolulu for his principal. The defendant has brought his appeal to this court, specifying thirty-five assignments of error, all of which have been carefully studied. Only one need be here considered, i.e., assignment number XXV. This assignment raises the question of whether or not the conduct of the trial judge was prejudicial error in that it deprived the defendant of a fair and impartial trial.

The record shows that while the defendant was a witness on his own behalf, the trial judge in the presence of the jury propounded fifty-four questions to him in the course of his direct examination and fourteen questions during the cross-examination, or a total of sixty-eight questions. It further appears from the record that both the attorney for the defense and the attorney for the prosecution were thorough examiners and able to fully develop the testimony as conscientious officers of the court without the assistance of the trial judge.

The examination of the defendant by the trial judge is too extensive to permit its transcription here. However, on every occasion when the trial judge took over the defendant as a witness, it is clear from the record that the court's examination was an interruption of the orderly development of the case by counsel. Indeed, the record shows that there was no patent reason to interfere. The answers of the defendant were clear and apparently he, at all times, understood the questions. In the course of these interruptive examinations, some of the questions were improper and may be characterized as argumentative.

It is stated by counsel for the defendant, and not denied by the appellee, that the trial judge exhibited an unfriendly attitude towards the defendant by his manner, repeated interruptions and by his lengthy examination of the defendant. We realize the great handicap we are under in that the record does not disclose the tone and inflection of voice nor the manner or attitude of the examiner. Faced with this situation, we can only point out that one question, in particular, asked by the judge while interrupting the direct examination of the defendant, is readily susceptible of being made into a most condemning accusation by the slightest inflection of the voice. This is pertinent in that counsel for defendant claims that the question was delivered by the trial judge in an angry tone. The question reads: “When you knew you were using that money for your own personal use, you put that paragraph in there to lull him to sleep. What was the purpose of putting that in there when you knew you were using the money?”

The question is further improper in that it is not only an accusation but also a statement assuming facts. It climaxed an initial series of seven questions when the trial judge first interrupted the direct examination of the defendant wherein his attorney was developing the reasons why the defendant had segregated the money deposited with him for the construction of the apartments into two bank accounts, i.e., one in the sum of $3,000 as a personal or suspense account, the other in the sum of $20,000 as a general or construction account. The defendant stated that this was done upon advice of counsel for the protection of himself and his principal and so advised his principal by letter. In this series of questions, the trial judge assumed that the personal account belonged to the principal and in questioning the reasons for the split, centered his examination upon why detailed reports had not been rendered as to the disbursements from the personal account.

One of the defenses, which the defendant was attempting to establish, was that he did not have a criminal intent to embezzle. In its development, he testified in effect that, because his services were in fact worth more than the stipulated five per cent commission he had reason to look forward to being paid an additional percentage or if his taking were unauthorized to have it ratified. In this connection he testified in respect to a conversation with his principal wherein his principal volunteered the remark: “Well, Sam, if you are entitled to more money, I will see that you get more money. You are spending a lot of time and I expect to pay for it.”

Interrupting this line of testimony on direct examination, the trial judge asked: “Why didn't you, in talking to the police or talking to him [the prosecuting witness] at the time you were found short, ever say anything about that until you came on the witness stand here to-day? Why didn't you say that to him? Why didn't you say that to the auditors at the time this audit was going on, if you intended to have more than five percent?”

Again in respect to the same situation, the trial judge interrupted the direct examination with the following four consecutive questions:

(1) “Why did you give him that note for $3700.00 if you had money coming to you, if you thought you were entitled to more money than the five percent you had taken out of this Construction Account? Why didn't you take the balance out of the Construction Account or make some arrangements for doing so?”

(2) “If you were entitled to any of that money that you held there, why in the world did you sign that $3,757.00 note? Why didn't you settle that feature before you gave him a promise to make that payment as the difference due from you to him?”

(3) “Why did you give him this note if you had things coming to you?”

(4) “From then on to July why didn't you sit down and discuss that feature with him?”

The trial judge interrupted the cross-examination with the following four questions but not in sequence:

(1) “Why did you advise him you were going to make a report every thirty days?”

(2) “Why did you take the money out without discussing it?”

(3) “Why did you take $2500.00?”

(4) “Why did you split it?”

It is significant that the subject of segregating the funds into two bank accounts was dealt with by the trial judge in the first series of questions during the direct examination of the defendant and is again harped upon in the above series of interruptions in the cross-examination. The question “Why did you split it?” became the sixty eighth interruption. At this point, the defendant interposed an objection to the question as “prejudicing this defendant with the jury.” The trial judge in answering the objection said: “The court has a right to develop or bring in any witness into the court-room to determine the evidence.” Whereupon the defense further objected to the court's comment and moved for a mistrial which was denied and an exception was taken by the defendant's attorney.

The record does not disclose the same attitude towards the other witnesses nor were they treated in the same manner or subjected to the same degree of examination as was the defendant. On the contrary, at the outset of the prosecution's case, counsel for the defendant points out that the prosecuting witness was shielded unnecessarily from cross-examination by the attorney for the defense when upon a proper question propounded for the first time on cross-examination but touched upon on direct examination in respect to the best recollection of the witness as to the contents of a letter, the trial judge sua sponte said: “The witness is entitled to protection.”

The defendant's counsel further points out that the record shows that the trial judge expressed his estimation of the defendant's credibility by writing in longhand across the bottom of an instruction requested by the prosecution and objected to by the defendant in the following words: “Given as requested over objection * * * The Court believing the defendant perjured himself.” The record, however, does not disclose that this written expression was ever presented to the jury and counsel agree that it was not exhibited to them but in its stead a clean copy of the instruction was presented, and we must assume, therefore, that such was the case. However, the handwritten inscription was the ultimate expression of the court's attitude toward the defendant at the close of the trial. It is, therefore, material in reflecting the trend of the court's mind during the trial.

In a case of this character, it is...