Territory v. Alcantara

• Decision Date: 28 March 1918
• Docket Number: No. 1054.,1054.
• Citation: 24 Haw. 197
• Parties: TERRITORY v. HERMOGOMES ALCANTARA.
• Court: Hawaii Supreme Court

24 Haw. 197

TERRITORY

v.HERMOGOMES ALCANTARA.

No. 1054.

Supreme Court of the Territory of Hawai‘i.

Argued March 19, 1918.

Decided March 28, 1918.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT.HON. C. W. ASHFORD, JUDGE.

Syllabus by the Court

A general exception to the entire charge of the court given to the jury does not bring to the attention of this court any specific question of law presented to the lower court and is too general to be considered in the appellate court.

In determining the criminality of the act of killing it is immaterial whether the intent was to kill the person killed, or whether the death of such person was the accidental or otherwise unintentional result of the intent to kill someone else.

On the trial of a person accused of committing the crime of murder, if there be no evidence upon which the jury can properly find the defendant guilty of an offense of a lesser degree than the one charged it is not error to instruct the jury that it cannot return a verdict of guilty of manslaughter or of any offense less than the one charged.

But in a prosecution for murder, where there is some substantial evidence, however weak and inconclusive it may appear to the trial court, that would tend to mitigate the homicide to manslaughter, it is error for the court to refuse to instruct the jury concerning manslaughter.Held, in this case, that such instruction should have been given.

C. S. Davis,Second Deputy City & County Attorney(A. M. Brown, City & County Attorney with him on the brief), for the Territory.

N. W. Aluli for defendant.

COKE, C. J., QUARLES AND KEMP, JJ.

OPINION OF THE COURT BY COKE, C.J.

The defendant was indicted by the grand jury of the circuit court of the first circuit on August 27, 1917, for the crime of murder in the first degree.The indictment charged the defendant with the killing of one Eustakuia Eljano on the 13th day of August, 1917, in the City and County of Honolulu, Territory of Hawaii.The defendant was tried before the circuit court of the first judicial circuit, Territory of Hawaii, in September 1917 and was convicted by a jury of murder in the first degree, which in this jurisdiction carries with it the death penalty.The defendant now comes to this court on exceptions.

The first exception relied upon by defendant is to the refusal of the trial court to submit to the jury, as requested by defendant, a charge upon manslaughter.The second exception of defendant is a general one to the entire charge of the court to the jury and the third exception is to the court's refusal to grant defendant's motion for a new trial, which, in effect, embodies the two exceptions first above referred to.Defendant's exception No. 2, being directed to the entire charge of the court to the jury, is too general in its terms to warrant consideration by this court.It has been repeatedly held by this court that exceptions, to be good, must be sufficiently definite and specific to direct the attention of this court to a point of law which was specifically called to the attention of the trial court affecting the legality of its ruling, thereby giving the lower court an opportunity to correct its ruling if the same was erroneous.SeeFraga v. Portuguese Mutual Benefit Society,10 Haw. 128;Territory v. Puahi,18 Haw. 649;McCandless v. Honolulu Plantation Co.,19 Haw. 239;Ripley & Davis v. Kapiolani Est.,22 Haw. 507;Kennedy v. Sniffen,23 Haw. 115.It then remains for us to decide the one question, to wit, whether the trial court erred in refusing to give to the jury the instruction requested by the defendant covering the crime of manslaughter.

The instruction requested was as follows: “I charge you that if you believe from the evidence adduced before you, beyond all reasonable doubts, that the defendant without malice aforethought and without authority, justification or extenuation by law stabbed and killed one Eustakuia Eljano, as alleged in the indictment, then you should find the defendant guilty of manslaughter and in the degree of manslaughter as you may find and arrive at.”The court refused to give this instruction as well as all other instructions requested by both the prosecution and defense and then proceeded to give its own instructions which were to the effect that under the evidence the jury should find the defendant guilty of murder either in the first or second degree or should acquit him.The court then proceeded to define the crime of murder and differentiated between murder in the first and second degree.The defendant excepted to the court's refusal to give his instruction on manslaughter, hereinabove set forth, and this exception is now properly before us for consideration.

Murder, under the statutes of this Territory, is the killing of any human being with malice aforethought, without authority, justification or extenuation by law and is of two degrees, the first and second, which shall be found by the jury.Sec. 3862 R. L. 1915.Murder committed with deliberate premeditated malice aforethought or in the commission of or attempt to commit any crime punishable with death, or committed with extreme atrocity or cruelty, is murder in the first degree.Murder not appearing to be in the first degree is murder in the second degree.Sec. 3864 R. L. 1915.Whoever kills a human being without malice aforethought, and without authority, justification or extenuation by law, is guilty of the offense of manslaughter.Sec. 3866 R. L. 1915.When the act of killing another is proved malice aforethought shall be presumed and the burden shall rest upon the party who committed the killing to show that it did not exist, or a legal justification or extenuation therefor.Sec. 3863 R. L. 1915.Under an indictment for murder or manslaughter the jury may return a verdict of manslaughter in any degree or for assault and battery, as the facts proved will warrant.Sec. 3825 R. L. 1915.

It will thus be seen that the essential difference between murder and manslaughter is that in the former crime the killing is with malice and in the latter without malice.In other words, malice is the element which distinguishes murder from manslaughter.It is not disputed that Eustakuia Eljano was killed nor is it denied that she was killed by the defendant.A very strong case was made out by the prosecution to the effect that on the day of the killing, to wit, August 13, the defendant followed the deceased and Pedro from Honolulu to Waipahu, a distance of about twenty miles, and located them at the house of one Pastor; that Pedro was asleep inside of a room of the building and that the deceased was standing in the doorway of the house conversing with Pastor and his wife; that defendant approached the house and without uttering a word stabbed the deceased with a dagger about twelve inches in length; that the blade of the dagger penetrated the lower lobe of the left lung; that deceased lived until the 18th of August at which time death resulted from the wound inflicted; that defendant then proceeded into the room where Pedro was asleep and stabbed him but the wound inflicted did not result fatally.The only evidence introduced by the defendant was his own testimony.He testified that on the day of the tragedy, believing that deceased had accompanied a man by the name of Pedro in an automobile from Honolulu to the village of Waipahu, he proceeded to that place by train and found the parties at Pastor's house; that arriving at the house he knocked at the door and deceased came and opened the door.Pedro was sitting in the corner of the room; that deceased refused to talk with defendant and that Pedro then approached defendant telling him that he had no business to talk with the deceased and that if he(defendant) did not leave the place Pedro would kill him; that Pedro had a knife and raised his hand ready to stab the defendant; that the defendant took a knife and while he was in the act of stabbing Pedro the deceased ran between them and received a mortal blow which was intended for Pedro.Defendant denies that he intended to stab the deceased but admits that he did intend to stab Pedro.Defendant further testified that he did not intend to do anything wrong but that he stabbed Pedro because Pedro wanted to stab him first.

The foregoing is the only evidence that is at all favorable to the defendant and is the only evidence upon which the defendant could ask an instruction covering the crime of manslaughter.The degree of the crime, as a matter of law, is not altered by reason of the fact that the mortal blow descended upon the deceased instead of upon Pedro, at whom it was directed.Where one attempts to commit a premeditated and deliberate murder and as the result of the act kills another than his intended victim he will, in respect of the person killed, be guilty of murder in the first degree if there is a legal connection between the original purpose of the act and the unexpected result.The King v. Bush,1 Haw. 62;Ringer v. State,85 S. W. 410;People v. Suesser,75 Pac. 1093;State v. Bell,62 Atl. 147.In determining the criminality of the act of killing it is immaterial whether the intent was to kill the person killed or whether the death of such person was the accidental or otherwise unintentional result of the intent to kill someone else.State v. Briggs,52 S. E. 218.Leaving aside for the moment the evidence of the prosecution and considering solely the effect of the testimony of the defendant, can it be said that there was no evidence which would have justified the jury in finding the defendant guilty of manslaughter?Can it be said that the jury, had the requested instruction been given, might not have found that the defendant at the time and on account of the assault about to be committed upon him was seized by sudden passion or rage or fear and that he acted without malice?Was it not clearly a question of fact for the jury to determine what was the mental condition of the defendant at...