Territory Hawai`i v. Henry, 2779.

• Citation: 39 Haw. 296
• Decision Date: 12 March 1952
• Docket Number: NO. 2779.,2779.
• Parties: TERRITORY OF HAWAII v. WINSTON CHURCHILL HENRY.
• Court: Supreme Court of Hawai'i

39 Haw. 296

TERRITORY OF HAWAII

v.WINSTON CHURCHILL HENRY.

NO. 2779.

Supreme Court of the Territory of Hawai‘i.

Argued February 15, 1952.

Decided March 12, 1952.

ERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. M. PENCE, JUDGE.

Syllabus by the Court

Evidence of events and conditions existing in the vicinity prior to the arrest of the defendant, is admissible if preliminary in nature and bearing a reasonable relation and immediate connection to the event which it is to elucidate. That such evidence recites offenses and the arrest of persons other than the defendant for independent offenses committed in the presence of the arresting officer does not of itself render it inadmissible.

A defendant as a witness in his own behalf may be cross examined upon prior convictions for the limited purpose of impeachment; and the Territory's failure to offer proof thereof does not constitute reversible error if the defendant admits a prior conviction, but does not recollect others. (R. L. H. 1945, § 9842.)O. P. Soares (also on the brief) for plaintiff in error.

A. R. Hawkins, Public Prosecutor ( C. M. Hite, Public Prosecutor when their brief filed, 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.

The defendant was convicted upon two charges, consolidated for trial and on appeal, of assault upon police officers with intent to resist, prevent, hinder or obstruct the said officers in the discharge of their duties. (R. L. H. 1945, § 11057.)

Four errors are assigned, the first three upon the admission of testimony, and the fourth, to the refusal of defendant's requested instruction of a verdict of not guilty.

The evidence established that a uniformed police officer on motorcycle patrol in company with a member of the military police on Smith street, near Beretania street, in Honolulu at 10:30 o'clock p.m., observed a pedestrian crossing Smith street in an unauthorized area. The officer dismounted, followed the pedestrian into an alley, and arrested him for the offense of jaywalking, following a minor scuffle. A second individual who persisted in interfering with that arrest was likewise arrested for interfering with the officer. The defendant did not have any part in these two incidents. He was standing on the sidewalk in front of a restaurant on Smith street, of which premises he was the lessee, engaged in conversation with two or three others. During the events that followed the jaywalker escaped, and the second individual arrested was dispatched to the police station. In the interim, a group having congregated, police reinforcements arrived to disperse the crowd from the scene. Estimates of its size varied from twenty to one hundred persons. At this point the defendant was requested by an officer to “move on.” Others in the group complied. The defendant refused. The officer again requested him to move, whereupon he jabbed the officer with his elbow. This incident resulted in the first charge. From this point forward the testimony is conflicting, although it can be reasonably concluded that the defendant, unwilling to submit to arrest, was forcibly escorted to the patrol wagon by several officers. In that scuffle he kicked a police sergeant. This resulted in the second charge.

The first and second assignments are directed to evidence of the facts occurring immediately prior to the defendant's first arrest. The testimony is that of the arresting officer and the military police officer upon the two prior arrests, and the congregating of the crowd in the immediate vicinity; all admittedly transpiring prior to the arrest of the defendant. It recites the arresting officers patroling the area, the arrest of the jaywalking pedestrian and the scuffle following his arrest, the interference with that arrest by the second individual, and his arrest and dispatch to the police station, during which time the pedestrian escaped. All of the foregoing was admitted prior to the testimony that the arresting officers had seen or were aware of the defendant's presence in the vicinity. It is contended that the admission of that evidence was error, it being not only incompetent, irrelevant and immaterial, but also prejudicial to the defendant inasmuch as he was not a party to those arrests or in any manner a participant in these prior events. The Territory contends that the testimony was admissible to establish the facts, circumstances and conditions existing in the vicinity immediately preceding the defendant's arrest, and was also preliminary in nature and relevant to the subsequent events which led to the arrest of the defendant.

Generally, any competent evidence which, when taken alone or in connection with other evidence, affords reasonable inferences upon the matter in issue, or which touches upon the issues in such a way as to enable the jury to draw a logical inference with respect to the principal fact in issue, is relevant and admissible. (See 1 Wharton, Criminal Evidence [11th ed.], § 222 for authorities.) “Evidence, however, must relate to, and be connected with, the transaction which it is to elucidate, and this connection must be immediate. But the law does not require a necessary connection, which would practically exclude all presumptive evidence, but such as is reasonable, and not latent or conjectural.” (20 Am. Jur. Evidence, § 250, pp. 243, 244.)

The testimony establishes the reasons for the officers' presence in the area, for dispersing the crowd that had congregated and for requesting the defendant to move on. It further established that the actions of the officers were in the performance of their official duties, an element of the offenses charged. The testimony, thus relating to the circumstances and conditions in the area immediately preceding the defendant's arrest, was immediately related and connected to the events that followed, and not temporally remote. That the testimony recounted the commission of independent offenses and the arrest of individuals other than the defendant does not, of itself, alter its otherwise relevant character. The test of admissibility is whether, when taken with other evidence, its relevancy appears, as here, where it constituted a necessary preliminary to the relevancy of other evidence. The determination of relevancy resting in the discretion of the trial judge, we find no abuse of that discretion.

A more substantial issue is presented by assignment number three. On cross examination, the defendant was questioned upon prior convictions. Excerpts from the defendant's testimony best illustrate the nature of the examination.

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