Territory Hawai`i v. Legaspi

• Decision Date: 29 January 1953
• Docket Number: NO. 2807.,2807.
• Citation: 39 Haw. 660
• Parties: TERRITORY OF HAWAII v. MIKE LEGASPI, TAMOTSU NAKASONE, JAMES KIYOSHI ONOE, ALSO KNOWN AS ALEXANDER SUMIDA, AND ROBERT MORIYOSHI KIYABU.
• Court: Hawaii Supreme Court

39 Haw. 660

TERRITORY OF HAWAII

v.MIKE LEGASPI, TAMOTSU NAKASONE, JAMES KIYOSHI ONOE, ALSO KNOWN AS ALEXANDER SUMIDA, AND ROBERT MORIYOSHI KIYABU.

NO. 2807.

Supreme Court of the Territory of Hawai‘i.

Argued June 10, 1952.

Decided January 29, 1953.

OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. J. E. PARKS, JUDGE.

Syllabus by the Court

Evidence to sustain a conviction must amount to more than a mere trifle or suspicion of guilt. It must be of a substantial nature and constitute more than a scintilla.

Where an instruction directs that as to all witnesses, their interest or lack thereof in the result of the case may be considered as affecting their credibility, it is not error to refuse an additional instruction specifically directing attention to the interest of a particular witness when that same test is applicable to all witnesses.

An instruction which defines an offense in the wording of the statute is sufficient.O. P. Soares (also on the briefs) for plaintiffs in error.

G. F. St. Sure, Assistant Public Prosecutor (also on the brief), for defendant in error.

TOWSE, C. J., LE BARON AND STAINBACK, JJ.

OPINION OF THE COURT BY TOWSE, C. J.

The plaintiffs in error were indicted for gross cheat and for conspiracy to commit gross cheat. (R. L. H. 1945, §§ 11360, 11120.) All were convicted upon the second count only.

Evidence introduced at trial in support of the allegations of the indictment established that Legaspi visited the shop of one Takeo Honda in Honolulu and inquired of the price of monuments stating that he proposed purchasing one for erection upon the grave of his father located in the Waipahu cemetery. Honda testified in part: “Mr. Legaspi stated that tomorrow morning a Japanese boy will come for him, so will you please come to Waipahu and make an estimate at the cemetery * * *.” From this point forward the record bears no further evidence introduced by the Territory concerning Legaspi's participation in the scheme to commit gross cheat upon Honda, other than that on several occasions prior to Honda's reporting his loss to the police he was seen in company with Nakasone, and the further fact that Kiyabu was present at the time of Legaspi's arrest at a rooming house in Honolulu. Legaspi, as a witness in his own behalf, admitted negotiating with Honda at his shop on the day in question for purchase of a monument for his brother's grave on Kauai, not that of his father at Waipahu; and also established that he was on the island of Kauai at the time Honda was swindled. This latter fact was not controverted. The record bears no evidence of the degree of acquaintanceship between Legaspi and plaintiffs in error Nakasone and Kiyabu; nor does it establish any acquaintanceship whatsoever between Legaspi and plaintiff in error Onoe.

Nakasone called at Honda's shop the following morning and offered to transport him to the Waipahu cemetery. Honda testified that upon arrival: “They finally came to a plot of land and Mr. Nakasone said, ‘This must be it--probably be it’.” While Honda was examining the plot, Onoe arrived and engaged Nakasone in conversation concerning a ride to Honolulu. Honda testified: “Mr. Sumida [Onoe] then came and pointed at a tomb and said, ‘This is Mr. Legaspi's father's tomb’.” The inscription was illegible. Because of the uncertainty of identification Honda then requested Nakasone to advise Legaspi to call at his shop the following morning to positively identify the grave and its location. The record bears no further evidence aliunde the conversation as to whether Legaspi's father's grave was in fact in the Waipahu cemetery, nor was that fact established or controverted at trial.

As they were driving back to Honolulu, Nakasone stopped the car in the vicinity of Hickam Field stating that he had observed a friend standing on the highway and desired to offer him a ride. Kiyabu entered the rear seat of the car carrying a suitcase, and stated that he had just returned from Japan. It was not established other than as above recited, whether Kiyabu and Nakasone were in fact prior acquaintances. Kiyabu then asked Nakasone for a loan. Nakasone stated that he had no money. Kiyabu then asked Onoe for a loan. Onoe agreed and executed a check for $300 on the Bank of Hawaii at Honolulu payable to Kiyabu. Kiyabu, on accepting the check, removed a box containing stones resembling cut diamonds from his suitcase and handing one of them to Nakasone remarked: “During the four and one half years that I was in Japan, I spent practically all of my money on these diamonds; so I don't have any right now.”

Kiyabu left the group at the Bank of Hawaii in Honolulu stating that he was going to cash Onoe's check. Onoe got out at Bishop street to locate a jeweler to appraise the stone which they had examined in the car. Nakasone and Honda met Onoe on Merchant street later the same morning, Onoe advising them that he had located the jeweler. They then drove mauka on Emma street to meet the jeweler, parked the car, and an individual who was not identified at trial, entered the car carrying a suitcase. He examined a cut stone which Nakasone handed him, stated it was worth $1800, and offered to purchase it for that amount. Nakasone promptly accepted the offer and was paid $1800 in cash. Onoe then opened Kiyabu's suitcase and displayed the remaining stones to the jeweler who, after a cursory examination offered to purchase the entire lot for $150,000. The jeweler then departed, and Nakasone, Onoe and Honda drove to Merchant street where they met Kiyabu who presumably had just returned from the Bank of Hawaii. Onoe then commenced urging Kiyabu to sell him all of the diamonds, and Kiyabu, after some deceptive and artful persuasion, agreed to sell the remaining diamonds to Onoe for $40,000. The group then drove to the Pleasanton Hotel where Kiyabu left them. Nakasone and Onoe then suggested that Honda join them in purchasing the diamonds from Kiyabu for $40,000 so that they--Nakasone, Onoe and Honda--could resell the stones to the jeweler at a profit of $110,000. Following more timely and ingenious persuasion they prevailed upon Honda to join them in contributing a share toward the purchase price of the stones from Kiyabu.

The indictment charged that by means of the prearranged series of events above recited, Honda was ultimately swindled of his contribution of $22,400, most of which he had secured from members of his family and friends and by negotiating a mortgage upon his home. At trial it was established that Kiyabu's cut stones were in fact white zircons worth $2.50 per carat.

Fourteen errors are assigned. Seven are relied upon, the remainder being abandoned except in so far as they relate to assignment of error number 1.

It is contended that the trial court erred in refusing defendant Legaspi's requested instruction number 2:

“I instruct you, gentlemen of the jury, to find the defendant Mike Legaspi not guilty.” It is urged that there was no evidence amounting to more than a scintilla from which the jury could find defendant Mike Legaspi guilty.

Bound as we are by the record before us, we find it grossly wanting in evidence, direct or circumstantial, bearing upon plaintiff in error Legaspi's guilt of the offense of conspiracy to commit gross cheat as laid in the second count of the indictment; so wanting in fact that its nature and details have been enumerated in full, supra.

This court will not disturb the verdict of a jury if there is more than a scintilla of evidence to support their finding. ( Rep. Haw. v. Yamane, 12 Haw. 189;Territory v. Chung Nung, 21 Haw. 214;Ter. v. Lam Bo, 23 Haw. 718;Territory v. Ebarra et als., 39 Haw. 488.) That evidence, however, to sustain such finding must amount to more than a mere trifle or suspicion of guilt of the offense charged. It must be of a substantial nature amounting not to a scintilla, but to more than a scintilla when considered with other material evidence. As a measure of quantum, a scintilla has been defined as: “the least particle of evidence--evidence which, without further evidence, is a mere trifle.” (Holstein v. Benedict, 22 Haw. 441, 445.)

Rarely in a trial involving charges of the nature of the instant indictment are the elements of a conspiracy, and ofttimes of participation, established by direct evidence. And where as here, presumably of necessity, proof of the agreement and concert of participation is attempted to be shown by the acts of the defendants and by other circumstances amounting to no more than suspicion and conjecture, that evidence must under settled principles yield to the requisite of logical and legitimate deductions warranting a reasonable inference of guilt. “The general rule is that, if there be any evidence tending to prove the fact in issue, or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury; otherwise not, for, short of this, the judge should direct a nonsuit or an acquittal in a criminal prosecution. * * * But, if the evidence warrant a reasonable inference of the fact in issue, it is for the jury to say whether they are convinced beyond a reasonable doubt of such fact, the fact of guilt.” ( Ter. v. Hart, 35 Haw. 582, 590.) Applying that rule, we find that the limited evidence of Legaspi's participation neither tends to prove his guilt, nor, in our opinion does it reasonably conduce to a conclusion of guilt as a fairly logical and legitimate deduction. On the contrary, it warranted the granting of plantiff in error Legaspi's requested instruction number 2.

The elements required to be proved under count two were a malicious or fraudulent combination or...