Territory Hawai`i v. Noguchi

• Decision Date: 25 April 1949
• Docket Number: No. 2658.,2658.
• Citation: 38 Haw. 350
• Parties: TERRITORY OF HAWAII v. DAVID TATSUO NOGUCHI.
• Court: Hawaii Supreme Court

38 Haw. 350

TERRITORY OF HAWAII

v.DAVID TATSUO NOGUCHI.

No. 2658.

Supreme Court of the Territory of Hawai‘i.

Submitted April 1, 1949.

Decided April 25, 1949.

ERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. J. A. MATTHEWMAN, JUDGE.

Syllabus by the Court

It is for the jury to determine the necessary intent from the circumstances of the case and if an assault has been made under such circumstances that the act of sexual intercourse, if it had been accomplished, would have been rape, the evidence of those circumstances is sufficient as a matter of law to support a verdict of guilty for assault with intent to commit the crime of rape.

In the case of rape upon a sleeping woman, no other force is required to constitute the crime than that necessary to effect penetration, the general rule being that if a man have carnal intercourse with a woman while she is asleep, he is guilty of rape because the act is by force and against her will within the meaning of the law.

S. Kashiwa for plaintiff in error.

T. Suyenaga, Assistant Public Prosecutor, for the Territory.

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

OPINION OF THE COURT BY LE BARON, J.

The defendant was convicted before a jury of the crime of malicious assault with intent to commit rape and that of burglary in the first degree. He brings the cause to this court on writ of error.

The specification of errors primarily pertains to the crime of the assault and secondarily to that of the burglary. They challenge the trial court's refusal to grant two motions of the defendant, one for a mistrial made in the course of presentation of the Territory's case in chief and the other for a dismissal made immediately after the Territory had rested.

The motion for a mistrial is premised upon the ground that an admission by silence was introduced without preliminary examination after the defendant had relied on an assurance of the assistant public prosecutor that the witness, a police officer, would not testify to any confession or admission. This ground erroneously assumes not only that an admission by silence was introduced but also that had its introduction been attempted the defendant would have had the right to a preliminary examination of the witness. The testimony to which the defendant objected and on which he predicated his motion for a mistrial established none of the concomitants of an admission by silence. It was the antithesis of such an admission and it dealt with actual statements of the defendant made to the police before whom he voluntarily appeared. The statements were made in response to an inquiry whether he knew anything about his neighbor's complaint that someone had entered her bedroom and molested her on the previous night. Although under suspicion, he was not under arrest and no charge or accusation was directed against him at the time. The defendant was asked no question which required a denial of guilt or assertion of innocence, nor did he make any such denial or assertion. The testimony is to the effect that the defendant stated that he could neither admit nor deny anything “simply because of the fact that he was too drunk at the time of the alleged incident. In other words, he could not admit, neither would he deny the fact that such a thing had been committed.” The defendant did not move to have this testimony stricken from the record nor did he make its admission the subject of an exception. Moreover, not only was the defendant's right of cross–examination fully exercised but his attorney during the Territory's redirect examination insisted that there be produced a written statement made and signed by the defendant, which contained the same statements as those attributed to him by the testimony adduced on direct examination, and on production of that written statement consented to its admission in evidence as a part of the Territory's case in chief. Such insistence and consent are consistent with the proposition that the statements in dealing with an excessive degree of drunkenness on the part of the defendant could have been reasonably held for his benefit to disprove a present intent to have sexual intercourse at the time had the jury believed them in disregard of their equivocal and evasive character. Nothing more need be said other than that a cursory review of the record demonstrates the frivolous nature of the motion for mistrial. The specifications challenging the refusal to grant the motion are thus devoid of merit.

The motion for a dismissal is posited upon the ground of insufficiency of the evidence presented by the Territory in its case in chief to prove the crimes charged in that it was not established that the defendant “intended to...