Territory Hawai`i v. Abad, 2851.

• Decision Date: 12 May 1952
• Docket Number: NO. 2851.,2851.
• Citation: 39 Haw. 393
• Parties: TERRITORY OF HAWAII v. LEONARDO ABAD AND FRANCISCO PAHINAG.
• Court: Hawaii Supreme Court

39 Haw. 393

TERRITORY OF HAWAII

v.LEONARDO ABAD AND FRANCISCO PAHINAG.

NO. 2851.

Supreme Court of the Territory of Hawai‘i.

Argued March 13, 1952.

Decided May 12, 1952.

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

Syllabus by the Court

To warrant the granting of a new trial upon the ground of newly discovered evidence, it must appear that the evidence has been discovered since trial; that it could not have been discovered before or at trial by the exercise of due diligence; that it is manifestly material to the issues and not cumulative nor solely for purposes of impeachment, and is of such a nature as would probably change the result of a later trial. Where movant, possessing knowledge of the evidence asserted to be newly discovered, was acquainted with and knew whereabouts of witness prior to and during trial but made no attempt to secure attendance, motion for new trial will be denied for want of exercise of due diligence.O. P. Soares (also on the brief) for plaintiffs in error.

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.

The defendants were convicted of robbery in the second degree. Writ of error issued upon the denial of defendants' motion for a new trial asserting newly discovered evidence.

On April 20, 1949 the complaining witness, Filemon Lata, while proceeding to a bank in Honolulu to withdraw funds, encountered the defendants riding in an automobile. They offered to drive him to the bank. The evidence establishes that upon inquiry, Lata permitted them to examine his bankbook then bearing a deposit entry of $1500 on March 31, 1949 and later, a withdrawal in that amount on the day in question. Following the withdrawal, the defendants offered to drive Lata to the Honolulu post office. Instead, they cruised about town and were driving mauka on Fort street approaching Vineyard at the time of the alleged robbery. While in that vicinity Lata testified that Pahinag struck him on the head and removed the $1500 from his trouser pocket and another $500 from his shirt pocket; and, handing the $2000 to Abad, who was driving, dragged him from the car and fled on foot. Abad took flight in the car. Lata, dazed from the attack, recovered sufficiently to pursue and overtake Pahinag and, in the ensuing struggle, wounded him with a knife which he had concealed earlier on his person. When taken into custody, Lata forthwith accused the defendants of robbing him. He characterized his assault upon Pahinag as an attempt to “find my rights because they robbed me and took my money away.”

The indictment alleged robbery in the second degree of the sum of $2000. At trial neither defendant testified, nor were any witnesses called on their behalf. Lata was the principal witness on behalf of the Territory.

The motion for a new trial grounded upon newly discovered evidence was supported by the affidavit of one John Kang. It alleged Lata's testimony of the defendants robbing him was false since he could not have been robbed of $2000 at the time and place alleged inasmuch as Lata had lost all the money he had to the affiant in a gambling game on the morning immediately preceding the alleged robbery. Kang testified in support of the affidavit.

Following extended hearings, during which Kang sought advice of independent counsel concerning his incriminatory testimony but nevertheless testified in full detail, the motion was denied upon the grounds that Kang's role as a self-admitted gambler did not lend credence or weight to his testimony; that inasmuch as it was in fact self incriminatory, and further assuming it to be credible, no probable grounds existed that the testimony would be available upon a new trial; and that there had not been a sufficient showing that the defendants had exercised due and proper diligence in attempting to secure and offer the testimony at trial.

Section 10122 of Revised Laws of Hawaii 1945 provides in part that “* * * the court may in any civil or criminal case grant a new trial for any legal cause.”

To warrant the granting of a new trial upon the ground of newly discovered evidence, it must affirmatively appear that the evidence has been discovered since trial; that such evidence could not have been discovered before or at trial by the exercise of...