Territory Hawai`i v. Kinoshita

• Citation: 38 Haw. 335
• Decision Date: 20 April 1949
• Docket Number: No. 2642.,2642.
• Parties: TERRITORY OF HAWAII v. GEORGE SUSUMI KINOSHITA.
• Court: Supreme Court of Hawai'i

38 Haw. 335

TERRITORY OF HAWAII

v.GEORGE SUSUMI KINOSHITA.

No. 2642.

Supreme Court of the Territory of Hawai‘i.

Submitted April 5, 1949.

Decided April 20, 1949.

ERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. W. C. MOORE, JUDGE.

Syllabus by the Court

Where a female child under the age of five years, presumably incompetent to be a witness, is shown by other competent evidence to have been in company with the accused, under circumstances raising a question of his innocent or criminal intentions, and where, on resuming companionship with her mother, the child immediately tells the mother of indecent and improper liberties being taken by the accused upon her person, such declarations become admissible under the discretion of the trial court and when admitted are substantive evidence of the conduct described under a well-recognized exception to the hearsay rule, variously characterized as res gestae or spontaneous declarations; nor is it decisive against such declarations that the statements were made in response to a question; nor is the time element controlling; but the credibility and weight to be given such declarations are for the trier of the facts.

Corpus delicti simply means the actual commission of a crime by someone. The defendant's connection with the crime is not an element of the corpus delicti, although his agency must also be shown in order to sustain a conviction.

A conviction for indecent assault by the trial court, jury waived, will not be reversed under section 9564 of Revised Laws of Hawaii 1945, on a claim of insufficiency of evidence as to (1) corpus delicti or (2) identity of defendant as perpetrator, unless so palpably unsupported in the evidence as to demonstrate that the defendant was deprived of substantial rights.

J. M. Morita for plaintiff in error.

C. M. Hite, Public Prosecutor, and Moon Chan, Assistant Public Prosecutor (on brief only), for the Territory.

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

OPINION OF THE COURT BY CRISTY, J.

This is a writ of error to review a judgment of conviction of the crime of indecent assault.

Section 11666, Revised Laws of Hawaii 1945, defines the crime as follows: “Whoever takes indecent and improper liberties with the person of a female child under the age of twelve years without committing or intending to commit the crime of rape shall be deemed guilty of indecent assault and on conviction thereof shall be punished by a fine not exceeding one thousand dollars or imprisonment at hard labor for not more than five years or both.”

The plaintiff in error, defendant below (hereinafter called the defendant), was charged under an indictment duly returned on August 1, 1946, in that he, “at the City and County of Honolulu * * * on the 9th day of June, 1946, did unlawfully, feloniously and without authority and without justification by law, take indecent and improper liberties with the person of one [naming her], a female child under the age of twelve years * * * and did then and there and thereby commit the crime of indecent assault, contrary to the form of the statute in such case made and provided.” The indictment was not challenged below or here.

Trial was held, jury waived. On the conclusion thereof the trial judge convicted and sentenced the defendant for the crime of indecent assault. At the trial the mother of the alleged victim was a witness for the prosecution. In substance, on her direct testimony, she stated that about nine-thirty on the morning of June 9, 1946, she had taken her three-year-old son to the barber, leaving her four-and-a-half-year-old daughter playing in the neighborhood of the International Theatre and parking lot, situate just in front of her home in Aala Lane in Honolulu. She returned from the barbershop with her boy around ten-twenty the same morning and found the defendant sitting on the steps of the theatre and talking with her daughter. The mother went back to her home, leaving the children in company with the defendant. Shortly thereafter the young daughter came to ask permission to go to the show with the defendant. Permission being granted, the daughter left. After the show and between twelve-thirty and one o'clock the daughter returned home. The mother and daughter then had a conversation.

On direct examination, on objection by defendant's attorney, the mother was not permitted to testify as to the conversation by the daughter on her return home “after the show.” But the conversation was fully brought out upon cross-examination and redirect. The child's part of the conversation admittedly described an indecent assault upon her by the defendant and concluded with the words: “I run home. I scared, Mommy.” A primary detail of the assault as related by the child was that the defendant had her “play horsey” on his private organ. Earlier on the same day the defendant was overheard by another witness to invite the child to go with him into a parked truck and “play horsey.” On the afternoon of the next day the child and her mother were passing the barbershop. The child caught sight of the defendant, immediately called her mother's attention to him and in the presence of the defendant repeated the details of the former conversation. The defendant, when thus accused, responded: “that he never meant no harm because he liked the child * * * I didn't mean to.” Then, when the mother upbraided him and another witness sought to question him, the defendant ran away. When apprehended later on by the police, and identified by the mother and child, the defendant denied ever having seen either mother or child prior to his arrest.

After the prosecution had rested, defendant's attorney moved for dismissal on the ground that the prosecution had failed “to produce the corpus delicti.” The motion was denied, the court stating: “You proved the corpus delicti on cross-examination.” No exception to the ruling was taken. Then witnesses were presented on behalf of the defendant in an attempt to present an alibi both as to the morning of June 9 and as to the afternoon of June 10. The trial judge rejected the theory of alibi in his findings. The defendant did not present himself as a witness.

After further continuance of the hearing, search of authorities and argument of counsel, the court stated its findings and ruling in the following language: “For the purpose of the record, the Court is going to consider this evidence given on cross-examination as part of the res gestae, and it is accorded its weight as hearsay evidence elicited by the defendant and, of course, it is admissible under those grounds. The Court is frank to state had this been just the testimony of the girl that there would be serious doubt in the Court's mind as to what the situation was. We have had in this case certain disinterested witnesses, that is the parking lot person, who testified that he saw this man not only on the day in question, but on several other occasions with this little girl. The defendant, according to [one of the witnesses], stated that he did not mean to do the girl any harm; that he had bought candy and ice cream for her on occasions, and that when they were discussing calling an officer this man faded out of the picture, and it is apparent from the testimony of his own witnesses that his usual habits, of at least going to a restaurant where he usually dined, ceased at that time, and it was some time after that, I think it was July 11th, that he was apprehended, in other words a little over a month from the happening of this event. That at that [time] this man denied emphatically of ever having seen this girl or her mother. * * *

“This Court is convinced that this man has seen this woman and this girl, and when he denies ever having seen them and you start to add up all these other pieces of evidence it seems the circumstances add up to this, that this girl had been taken liberties with by this man; that he knew that he was wrong and so stated that he was wrong; and then when he was apprehended denied ever having known her. It is the Judgment of the Court that the defendant is guilty as charged.” Defendant's attorney saved an exception to this ruling. At a later date the defendant was sentenced and an exception was taken to the sentence “as being contrary to the law and the evidence and the weight of the evidence.”

In this court the following errors have been specified:

1. “That the Court erred in treating and considering as part of res gestae the evidence of complaint of [the young girl, naming her] to [the mother, naming her] some two and one-half (2 1/2) hours after the commission of the alleged offense when said [the young girl], a minor and four and one-half years of age, was presumably an incompetent witness on account of her immature years and not a witness in the case, and in the light of the evidence as to what said [young girl] did during the two and one-half (2 1/2) hours between the time of the commission of the alleged offense and the time of making the complaint.”

2. “That the Court erred in considering and giving weight and credit to the hearsay testimony of * * * mother of the alleged victim and one of the important complaining witnesses, the complaint of which was made to her, the said [mother], by the alleged victim [the young daughter], some two and one-half (2 1/2) hours after the commission of the alleged offense.”

3. “That the Court erred in pronouncing sentence on the defendant when the judgment was not sustained by the evidence in that the prosecution failed to prove by requisite proof beyond all reasonable doubt the identity of the perpetrator of the alleged offense--an essential ingredient or element of the corpus delicti of the crime of Indecent Assault.”

The errors specified will be taken up in the above sequence.

1. The issue raised under the first specified error may be restated: were the declarations of the four-and-one-half-year-old daughter to her mother, as testified by the mother, legally before the court for all...