Territory Hawai`i v. Ebarra, 2803.

• Citation: 39 Haw. 488
• Decision Date: 23 July 1952
• Docket Number: NO. 2803.,2803.
• Parties: TERRITORY OF HAWAII v. DAMASO IBERA EBARRA, SIGONDINO AUCHETA BARROGA AND ANDRES JABELLO RESSURICTION.
• Court: Supreme Court of Hawai'i

39 Haw. 488

TERRITORY OF HAWAII

v.DAMASO IBERA EBARRA, SIGONDINO AUCHETA BARROGA AND ANDRES JABELLO RESSURICTION.

NO. 2803.

Supreme Court of the Territory of Hawai‘i.

Argued March 20, 1952.

Decided July 23, 1952.

ERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. J. E. PARKS, JUDGE.

Syllabus by the Court

Both corpus delicti and intent may be proved by circumstantial evidence.

A defendant jointly indicted for the crime of robbery who renders it countenance and encouragement, and who stands ready to assist in its perpetration, may be charged as a principal.

If a codefendant's culpability arises from the acts of his coprincipals, it must appear that such acts were done in furtherance of a common purpose or design to commit the crime charged.

To sustain a verdict of guilt there must be more than a scintilla of evidence.

H. Bouslog ( Bouslog & Symonds on the briefs) for plaintiffs in error Barroga and Ressuriction.

G. F. St. Sure, Assistant Public Prosecutor ( A. R. Hawkins, Public Prosecutor, with him on the brief), for defendant in error.

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

OPINION OF THE COURT BY TOWSE, C. J.

Defendants in error were convicted of robbery in the second degree. Motion for a new trial, upon grounds that the verdict was contrary to law and to the evidence, was denied. From this order they bring writ of error.

The errors assigned present two questions; first, whether the verdict, judgment and sentence were contrary to law and to the weight and credibility of the evidence; and second, whether there was sufficient evidence to sustain the verdict that the robbery was committed jointly by the three defendants.

The material facts developed at trial established that Esteban Bollozo was at an inn in the vicinity of Aala Park when the defendants entered. Ressuriction was an acquaintance of Bollozo, and after the defendants had purchased their drinks, Bollozo purchased two additional rounds for them. Ebarra, angered by a remark made by Bollozo, poured beer into Bollozo's shirt pocket as he stood alongside the table at which they were all then sitting. Bollozo later returned to his table, collected $17.30 change from a twenty-dollar bill which he had earlier withdrawn from his wallet and left the inn. Ebarra had already departed and Barroga followed Bollozo from the inn. A portion of Bollozo's testimony of the attack by the defendants and the events that followed after he crossed Beretania toward Aala street established that he was attacked and assaulted: “* * * they were beating me up I was trying to defend myself, and at the same time somebody was feeling my pocket, and removed my wallet” containing $260. Ebarra and Barroga were arrested shortly thereafter near the scene. Ressuriction voluntarily appeared at the police station the following day.

The testimony established that Bollozo was in fact attacked by three persons. In that state of the evidence the Territory was unable to positively identify by affirmative testimony that Ressuriction was the third assailant. The evidence established that the third person fled the scene. In written statements Ebarra and Barroga admitted the assault but denied the robbery. They implicated Ressuriction as being one of the trio in the joint assault. Ressuriction denied having been present at the scene.

Bollozo forthwith informed the police officers upon their arrival at the scene that he had been robbed, and a search of his person at the police station failed to reveal a wallet in his possession. He also accused the defendants of robbing him of a pair of dark eyeglasses. Bollozo was unable to positively identify a pair found upon Ebarra's person following arrest. Neither the money nor wallet was found in possession of any of the defendants at the time of arrest.

The defendants were charged jointly as principals, presumably under the theory that each had joined in the commission of the crime. (R. L. H. 1945, § 10670.)

At trial, Bollozo was the sole witness of the robbery itself. He testified in part:

“One of them grabbed hold of my hand, one of them grabbed hold of my neck, and one of them held me by the arm, and dragged me to the * * * they were going towards the Singapore, and then they beat me up over there.

“After I was beaten up the wallet was gone. While they were beating me up someone felt in my pocket.

“Well, while they were beating me up I was trying to defend myself, and at the same time somebody was feeling my pocket.”

Robbery is the stealing from the person of another or from his custody, in his presence, by force or putting him in fear. (R. L. H. 1945, § 11590.) The issue decisive of the errors assigned is whether, upon the record, the element of animo furandi jointly applicable to the three defendants, was sufficiently established. It is well-settled that the corpus delicti may be established by circumstantial evidence. (Territory v. Makaena, 39 Haw. 270; Territory v. Sable Hall, 39 Haw. 397.) (See also 20 Am. Jur., Evidence, §§ 1230, 1231.) Likewise, criminal intent may be established by circumstantial evidence. (People v. Franklin, 46 Cal. App. 1, 188 P. 607;Ter. v. Palai, 23 Haw. 133; Loo Toon v. Ter., 16 Haw. 351.)

The general rule is that those physically present at the scene of a robbery who render it countenance and encouragement and who stand ready to assist in its perpetration,...