Territory Hawai`i v. Low

• Decision Date: 08 August 1940
• Docket Number: No. 2436.,2436.
• Citation: 35 Haw. 571
• Parties: TERRITORY OF HAWAII v. JAMES LOW.
• Court: Hawaii Supreme Court

35 Haw. 571

TERRITORY OF HAWAII

v.JAMES LOW.

No. 2436.

Supreme Court of the Territory of Hawai‘i.

Submitted July 29, 1940.

Decided August 8, 1940.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT FOURTH CIRCUIT.HON. J. F. MCLAUGHLIN, JUDGE.

Syllabus by the Court

Instructions stating a mere abstract principle are only objectionable when their tendency is to mislead the jury.

The indictment charged the defendant with having had sexual intercourse with a female under sixteen years of age on or about May 16, 1939; in support of his defense of alibi the defendant produced evidence which applied to May 16, 1939, only; the evidence in support of the indictment was such that the jury might properly conclude that the crime was committed on either May 16 or May 17, 1939.Held, that time is not of the essence of the crime alleged; that time cannot become the essence of a crime in any way except by the nature of the crime itself; that time becomes material and renders erroneous an instruction to the effect that it is not necessary to prove the time as alleged only where the evidence in support of an indictment charging a crime of which time is not of the essence is such that the only reasonable inference to be drawn therefrom is that the crime was committed, if at all, upon a particular day and the defense of alibi is made and the evidence in support thereof covers that particular day.

K. H. Lee and R. J. O'Brien for defendant.

M. Pence,County Attorney of Hawaii, and T. Okino, Deputy County Attorney of Hawaii, for the Territory.

COKE, C. J., PETERS AND KEMP, JJ.

OPINION OF THE COURT BY KEMP, J.

The defendantJames Low was indicted, tried and convicted in the circuit court of the fourth circuit of the crime of having sexual intercourse with Leilani Maka, a female not his wife and under the age of sixteen years.The defendant brings the case to this court on exceptions.His bill of exceptions contains ten exceptions but only two of them have been referred to in defendant's briefs.Under the practice in this court(the case having been submitted on briefs) those exceptions not referred to in the briefs will be regarded as abandoned and will not be noticed.(Stewart v. Spalding,26 Haw. 162, and cases cited;Ter. v. Bodine,32 Haw. 528.)

The exceptions which have been argued allege error in the prosecution's instructions numbers 5 and 7, given to the jury by the court over defendant's objection.Instruction number 5 is as follows: “You are instructed that in any criminal proceeding a wife is not competent or compellable to give evidence against her husband.”Instruction number 7 is as follows: “You are instructed, that time is not of the essence of the crime with which the defendant is charged and that it is not necessary to prove it as alleged, provided only that the proof relates to a time within the period of the Statute of Limitation, and prior to the finding of the indictment.”

Defendant argues that instruction number 5 assumes (1) that a wife attempted to testify against her husband, when there was no evidence of such in the case; (2) that the defendant had actual knowledge of section 3827, R. L. H. 1935;(3) that the statutory crime of sexual intercourse with a female under sixteen years of age was committed; and (4) that the defendant is the person who committed the alleged crime.All of counsel's argument proceeds upon the theory that said instruction assumed the existence of the foregoing facts.We are unable to agree with counsel that said instruction assumed the existence of any fact.If it had, it may be that it would come within the principle of the many cases cited and which condemn the giving of instructions which assume that certain material facts have been proved.One phase of the argument is that there is no basis in the evidence for the giving of the instruction.It is true that there was no wife who attempted to testify against her husband, but there was evidence in substantial accord with the admission of the defendant that two days after he was arrested on the charge in question he called upon the prosecuting witness and her mother, offered to marry the prosecuting witness and solicited the mother's consent.The evidence as to the circumstances under which this offer was made was at least sufficient to raise the question of whether or not the defendant sought the marriage for the purpose of disqualifying Miss Maka as a witness against him.But, if the foregoing evidence is insufficient as a basis for the instruction, we fail to see how the giving of it could mislead the jury or was at all prejudicial to the defendant.The abstract proposition of law set forth in the instruction is admittedly sound.“Instructions stating a mere abstract principle are only objectionable when their tendency is to mislead the jury.”The People v. Fuller,238 Ill. 116, 135, 87 N. E. 336.“An instruction stating a correct proposition of law is not necessarily misleading or prejudicial merely because it is inapplicable to the facts in evidence, and where it is not so it is not reversible error.”16 C. J. § 2485, p. 1046.

Instruction number 7, by which the jury was told that time is not of the essence of the crime with which the defendant is charged and that it is not necessary to prove it as alleged provided only that the proof relates to a time within the period of the statute of limitations and prior to the finding of the indictment, is admitted by the defendant to correctly state the general law on the subject of variance between allegation and proof.But he argues that time can be and was made of the “essence” in this case by his defense of alibi and the evidence introduced to prove the defendant's guilt.In support of the foregoing proposition, it is asserted that the evidence introduced by the prosecution shows that the alleged offense was committed, if at all, on May 16, 1939, and on no other date, and that unless he can rely upon that date his defense of alibi is destroyed unless his alibi should cover the whole period of the statute of limitations.We cannot subscribe to the proposition that time can become the essence of a crime in any way except by the nature of the crime itself.Defendant has apparently used that term to express the idea that when the evidence as to time is such that the only reasonable inference to b drawn therefrom is that the crime was committed, if at all, upon a particular day and the defense of alibi is made, time becomes material and it is therefore erroneous to give such an instruction as was given in this case because it destroys his defense of alibi.

The indictment upon which defendant was tried alleged that the crime was committed “on or about the 16th day of May in the year of our Lord One Thousand Nine Hundred and thirty-nine.”The defendant produced evidence tending to show that he was miles away from the place, where it is claimed the crime was committed, during the whole of May 16, 1939.

It will be necessary to examine in detail the evidence bearing on the time element.The complaining witness testified on direct examination, in effect, that on May 6, 1939, she began working as a waitress in Sun Sun Lau; that on or about May 16, 1939, she served the defendant a meal shortly before 11:00 o'clock; that at that time defendant told her he wanted to see her in his office that morning; that it was important that she be there in the morning; that on the same morning, after she had served other customers, she went to defendant's office and while on that visit the defendant had sexual intercourse with her; that it was about 11:30 o'clock in the morning of May 16 when she left defendant's office, a few minutes after d...