Territory of Hawaii v. Gagarin
| Decision Date | 10 June 1941 |
| Docket Number | 2454. |
| Citation | 36 Haw. 1 |
| Parties | TERRITORY OF HAWAII v. ANACLITO GAGARIN. |
| Court | Hawaii Supreme Court |
Argued April 30, 1941.
ERROR TO CIRCUIT COURT FIRST CIRCUIT. HON.H. E. STAFFORD, JUDGE.
Syllabus by the Court
Section 3563, R. L. H. 1935, prohibits a reversal in any term case for alleged error in the admission or rejection of evidence unless such alleged error was made the subject of an exception noted at the time it was committed.
The statutory duty imposed upon this court to review the evidence in all capital cases, whether the insufficiency of the evidence is assigned as error or not, does not require us to usurp the function of the jury by passing upon the credibility of witnesses or the weight of evidence, and a verdict must be sustained if supported by substantial competent evidence from which reasonable men, acting conscientiously and with a desire to arrive at the truth and do justice, could believe beyond a reasonable doubt that all of the elements of the crime charged were established.
C E. Hogg (also on the briefs) for defendant, plaintiff in error.
W Z. Fairbanks, Assistant Public Prosecutor (C. E. Cassidy, Public Prosecutor, with him on the briefs), for the Territory.
The defendant, Anaclito Gagarin, was found guilty by a jury of murder in the first degree and was by the court sentenced to death for the slaying of Estol Lannom. Defendant's motion for a new trial having been denied by the trial court, he thereafter, within the time allowed by law, brought the case to this court for review on writ of error and seeks to have a new trial ordered, urging two grounds therefor. Defendant has assigned as error the admission in evidence of a written, signed statement made by defendant to police officers a few hours after his arrest. The record fails to show, however, that any objection was made or exception noted to the reception in evidence of the statement. It does appear that when the prosecution was introducing evidence to identify the document, an objection was made to the effect that the document did not contain the exact words used by the defendant. This was before the reporter who took down the statement in shorthand and typed it from his notes and the interpreter who read it to defendant in English and translated it into Ilocano had testified. After these witnesses had testified (the reporter to the effect that the document contained the exact words used by the defendant and the interpreter to the correctness of the reading, translation and signing of the document) it was offered in evidence. Before the court acted upon the offer, the defendant and his counsel were permitted to examine it, with the assistance of the official interpreter. The examination having been completed, defendant's counsel said: Nothing further being said, the court ordered that the document be received in evidence and marked " Prosecution's Exhibit 9." It was then, without objection or exception, read to the jury.
Errors are raised by objection and preserved by taking exception. The ground of the objection should ordinarily be specified. Then, if the defendant takes an appeal, when the case reaches this court his specification of errors can be presented in a logical, orderly fashion, and should be supported by a brief containing argument and authority. When these steps have been taken, the appellant's right to have the alleged errors passed upon cannot be questioned. But, except as otherwise provided by statute, this court will refuse to consider errors not raised and preserved below. Moreover, section 3563, R. L. H. 1935, provides, inter alia, " Nor shall there be a reversal in any term case * * * for any alleged error in the admission or rejection of evidence * * * unless such alleged error was made the subject of an exception noted at the time it was committed." There being no exception noted to the ruling of the court permitting the statement to be received as an exhibit and read to the jury, we are not at liberty to consider the assignment of error complaining of its admission in evidence. We might say, however, that it abundantly appears from the record that the evidence in question was properly received and, even if we were at liberty to consider the assignment of error, we would have to overrule it.
The only other error assigned is to the effect that the evidence is insufficient to sustain the verdict, judgment and sentence.
This being a case in which there is a sentence to death, we would be compelled to review the evidence to determine if the interests of justice require a new trial, whether the insufficiency thereof was assigned as error or not. This duty is imposed upon us by section 3563, R. L. H. 1935, which provides in part as follows: " In case of a sentence to death, the court shall review the evidence to determine if the interests of justice require a new trial, whether the insufficiency of the evidence is assigned as error or not."
The foregoing provision was incorporated in the statute in 1931. The question of whether or not the quoted provision of the statute imposes upon this court the duty to require a higher degree of proof, in order to sustain a verdict in a capital case than is required to sustain a verdict in a noncapital case, has been raised and argued. This question has not heretofore been considered by this court. The only direct reference by this court to the quoted provisions of the statute coming to our attention appears in the concurring opinion of Mr. Justice Banks in Ter. v. Corum, 34 Haw. 186, 187, where he said: Mr. Justice Banks was clearly confronted with and was considering a different problem from the one now under consideration and therefore does not aid us in the solution of our problem.
In order to ascertain the legislative intent the statute must be considered as a whole and all of its provisions given effect. The primary intention of the legislature, clearly expressed by the foregoing language, was to require this court in considering capital cases to relax the rule theretofore firmly established by judicial precedent that errors not assigned would not be considered, and review the evidence whether the insufficiency thereof was assigned as error or not. The singling out of capital cases for special treatment evidences a greater solicitude on the part of the legislature for defendants sentenced to death than for those not so sentenced. However, the legislature apparently anticipated that the language quoted might be held to require the court to weigh the evidence in capital cases and determine the issue on such evidence as it found to be credible and of the greater weight, without regard to the conclusion of the jury in that regard as evidenced by the verdict. To avoid the possibility of such a construction being given the general language quoted, the legislature, by the same Act, provided: " Nor shall there be a reversal in any term case * * * for any finding depending on the credibility of witnesses or the weight of the evidence." This specific provision clearly indicates that it was not the legislative intent that we should usurp the function of the jury by attempting to pass upon the credibility of witnesses or the...
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