Territory of Hawaii v. Corum

• Decision Date: 11 May 1937
• Docket Number: 2257.
• Citation: 34 Haw. 167
• Parties: TERRITORY OF HAWAII v. WILLIAM H. CORUM.
• Court: Hawaii Supreme Court

34 Haw. 167

TERRITORY OF HAWAII v. WILLIAM H. CORUM.

No. 2257.

Supreme Court of Territory of Hawai'i.

May 11, 1937

Argued February 11, 12, 1937.

ERROR TO CIRCUIT COURT FIRST CIRCUIT. HON.H. E. STAFFORD, JUDGE.

Syllabus by the Court

It is a general rule that where a statement is made in the presence and hearing of an accused incriminating or accusatory in character and such statement is not denied, contradicted or objected to by him, both the statement and the fact of his failure to deny are admissible in a criminal trial as evidence of his acquiescence in its truth.

The circumstances under which the statement is made must be not only such as afforded the accused an opportunity to speak but such also as would properly, naturally and reasonably call for reply.

There is a wide divergence of judicial opinion as to the admissibility of incriminating or accusatory statements made in the presence of an accused and not denied by him where the accused is under arrest on a criminal charge at the time the accusation is made.

By the Federal as well as many state courts it is held that the fact of arrest on a criminal charge alone is sufficient to render inadmissible as evidence the failure of an accused to deny incriminating or accusatory statements made in his presence and hearing.

Even in those jurisdictions where the rule of " admission by silence" of an accused in custody on a criminal charge is recognized the statement, to be admissible as evidence must have been made in the presence of the defendant incriminating or accusatory in character and the truth of the facts embodied therein must have been within the knowledge of the accused.

If the statement is not inculpatory or if it be such that for lack of knowledge the accused cannot deny it, no inference of guilt can flow from the fact that he remains silent.

The rule is universal that an instruction to a jury cannot be predicated upon assumed facts upon which there is no proof nor upon incompetent and illegal evidence which should have been excluded.

The admission by a trial judge of incompetent evidence before a jury, followed by an admonition to disregard it, is a practice which should not only be discouraged but condemned.

W T. O'Reilly and M. K. Ashford (also on the briefs) for plaintiff in error.

J C. Kelley, Public Prosecutor, and C. E Cassidy, Assistant Public Prosecutor (also on the briefs), for the Territory.

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

OPINION OF COKE, C. J.

William H. Corum, a member of the Honolulu police force, was indicted by the grand jury of the first judicial circuit of the Territory of Hawaii on the 30th day of July, 1935, for the murder of his wife Marjorie Corum on July 3, 1935. At the trial, the defendant on October 1, 1935, was found guilty by a jury of the crime charged and was sentenced to be hanged. This writ of error is prosecuted to the verdict and sentence. A great number of witnesses, both expert and nonexpert, were called by both the prosecution and the defense, the transcript of evidence being extremely voluminous. We will summarize briefly some of the more salient facts brought out at the trial.

The defendant and Marjorie Corum were married in Honolulu on July 20, 1934. They were young people of about equal age and after their marriage took up their abode in an apartment at 2163-B Atherton Road, city of Honolulu. Corum was a patrolman-clerk in the Honolulu police department until he resigned on July 8, 1935. Marjorie Corum, the deceased, was a registered nurse employed at the Queen's Hospital in Honolulu in the capacity of floor supervisor. The hospital was located some two or three miles from her place of abode. She was on duty at the hospital during the entire day of July 3 and was last seen alive by an acquaintance around 7:45 p.m. of that day at which time she was sitting near the nurses' home in the hospital grounds. Shortly after 8 p.m. she was heard by a neighbor to enter the apartment shared by herself and husband on Atherton Road. Between 9:35 p.m. and 9:40 p.m. of the same day Corum appeared at the rear door of the home of Mr. and Mrs. Meyer, neighbors who lived but a few feet distant, and requested the use of the telephone, stating at the time that his wife had shot herself. The neighbors immediately phoned to Dr. French who also lived in the vicinity and who received the call about twenty minutes to 10 o'clock. The doctor immediately responded to the call and in company with the defendant and Mr. and Mrs. Meyer went to the Corum residence where Mrs. Corum was found lying on a bed dead from a pistol shot wound. She was dressed in a kimono and light underclothing and was face up crosswise of the bed near the head thereof. Her hands were loosely clasped across her bosom, in her right hand was grasped a white handkerchief and her toes were in contact with the floor beneath the edge of the bed. There was a bullet wound above the third interspace to the left of the sternum. The course of the bullet was directly through the heart. At that time rigor mortis had not yet developed and death apparently had taken place but a short time, perhaps not more than thirty minutes, previously. A 32-caliber automatic pistol was lying on the bed near the left elbow of the deceased. An exploded shell fitting the pistol was found between the foot of the bed and the bedclothing. A large quantity of blood was on the exterior of the body of deceased in the vicinity of the wound and on the bedclothing and furniture close by. One blood spot was some six feet from the head of the deceased. The bullet had penetrated the body rupturing the auricles of the heart, had passed through the base of the left lung and out through the back at a point slightly to the left of the spine. It was found embedded in the mattress directly below the point of entrance into the body. The course of the bullet indicated that it had been fired vertically and the wound was of such a nature as to cause almost instant death. The wound at the entrance was clean and about the size of the bullet. It was neither jagged nor frayed as would have been the condition had the weapon been fired while in contact with the body. No powder burns or powder residue were found on the skin or flesh at or near the aperture of the wound nor on the brassiere or other clothing adjacent to the wound. The bedding, furniture and fixtures in the room where the body of the deceased was found and the clothing in which she was garbed were all in a natural and undisturbed condition and the body was free from exterior bruises or abrasions, all indicating the absence of any struggle or assault prior to the infliction of the death wound. The defendant admitted the ownership of the death weapon. He testified that about a month prior to the tragedy he had placed the pistol in a chiffonier drawer in the bedroom and that he had subsequently neither possessed nor handled it. No distinguishable fingerprints were found on the exterior of the weapon following the death of Mrs. Corum. There was, however, an impression of the defendant's right thumb on the magazine (referred to in the testimony as the clip) of the pistol. The magazine contains the loaded cartridges and is carried in the interior of the handle or grip and held in place by a spring clasp. Whether the thumbprint was of recent origin could not be determined.

Major Thrasher, an army officer, was visiting at the Hastings home near the Corum apartment during the whole of the evening of July 3, 1935. He testified at the trial that sometime between twenty minutes of 9 p.m. and ten minutes after 9 p.m. his attention was drawn to a single report or explosion near by which the witness recognized as a pistol shot.

Mr. and Mrs. Finkenbinder, who lived in quarters under the same roof and adjacent to the Corum apartment, testified that between 9 p.m. and 9:15 p.m. they heard what resembled the explosion of a giant firecracker close by. Mr. Finkenbinder definitely located the Corum apartment as the place from which the sound emanated. Shortly after the body was discovered Dr. Faus, city and county physician, arrived at the scene. He subsequently performed an autopsy and pronounced the death to be suicidal. The defendant was taken to the police station shortly after midnight following the tragedy, was questioned at length by the police authorities, and a paraffin test for powder residue on his hands, as well as on the hands of the deceased, was made by Dr. McVeagh, a ballistic expert. After removing the paraffin cast from the hands of the defendant and the deceased he applied a reagent known as diphenylamine which, it is claimed, will disclose the presence of nitrates or nitrites, if any, upon the paraffin after application to the human skin. The result of these tests was negative as to the hands of the deceased but the test applied to the right hand of the defendant produced flaky nitrates and nitrites similar to gunpowder residue.

The defendant was detained in custody by the police for a brief time following the tragedy and then released. Thereafter, as aforesaid, the grand jury returned an indictment charging him with the murder of his wife, since which time he has been held in prison. At the trial before the jury the defendant attempted to establish an alibi. He took the witness stand in his own behalf and denied all responsibility for the death of Mrs. Corum, his testimony being that he was not at home at the time of the tragedy and had no knowledge of it until he arrived there and found his wife lying dead upon the bed in the sleeping room of their apartment. The defendant related in detail his movements during the evening of July 3, 1935. He testified that his wife Marjorie called for him at the home of Sergeant of Police Coxhead on Pensacola...