Territory v. Goto
| Decision Date | 26 April 1923 |
| Docket Number | No. 1416.,1416. |
| Citation | 27 Haw. 65 |
| Parties | TERRITORY v. I. GOTO, ET AL. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
EXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. J. J. BANKS, JUDGE.
Syllabus by the Court
Defendants were charged with maliciously or fraudulently conspiring together to commit a felony, to wit, to unlawfully use and cause to be exploded dynamite for the purpose of inflicting bodily injury upon S, or to frighten and terrify him, or to injure, destroy or damage the house occupied by said S. The defendants did not demur or otherwise take exception to the indictment but, on the contrary, each defendant upon being interrogated specifically stated that he understood the nature of the accusation against him, and defendants, through their attorneys, in writing stipulated that the indictment was not uncertain by reason of insufficient or defective allegations, and that they waived any insufficiency in the allegations of the indictment. After trial and conviction, on exceptions brought to this court, the question of the sufficiency of the allegations in the indictment being raised for the first time, held, that the alleged insufficiency or defectiveness of the indictment was waived.
Conspiracy implies concert of design and not participation in every detail of execution. It is not necessary that the plan or combination shall embrace in detail in its early stages the various means by which it is to be executed, as it is sufficient that there is a general plan to accomplish the result sought by such means as may from time to time be found expedient.
Upon a trial under an indictment for conspiracy to unlawfully use dynamite, where there was evidence tending to show that certain of the defendants conspired together in Honolulu to commit violence upon a person living on the island of Hawaii, the precise manner in which the proposed violence was to be committed being left undetermined, and that thereafter certain other persons on Hawaii entered into the conspiracy, perfected the details thereof and determined upon and proceeded to use dynamite as the means and instrument of the proposed violence, the jury was properly instructed that if it found all of these facts beyond a reasonable doubt and that the act done was the reasonable and probable result of, and reasonably calculated to accomplish the original purpose, it might find all of the defendants guilty as charged.
The court instructed the jury on behalf of the prosecution, that if it should find from the evidence beyond a reasonable doubt that the acts at Olaa were in consequence of an agreement formed at the tea house at 4 Miles near Hilo and that such agreement was in furtherance or continuation of a conspiracy formed on Oahu, such evidence would be sufficient to prove that the conspiracy charged in the indictment was, as a matter of law, formed on Oahu. Held, that this instruction fairly stated the law applicable to the case.
If a conspiracy be entered into in one county to commit an offense in another county and the original conspirators or others who joined the conspiracy later go into that other county to execute their plan of mischief and there commit an overt act, such overt act of any one of the conspirators in furtherance of the common design is considered in law a renewal or rather continuance of the original agreement by all the conspirators and the venue may be laid in the county where the agreement was entered into.
In a prosecution for conspiracy evidence of acts and declarations of the conspirators done or made in furtherance of the common purpose is admissible against all of the conspirators.
In a prosecution for conspiracy the order of proof is largely within the discretion of the trial court and the prosecution may, prior to the establishment of the existence of the conspiracy, offer evidence of acts and declarations by defendants and other facts and circumstances, which, standing alone, would appear immaterial but which are to be connected up and made material by evidence to follow.
Where hearsay evidence has been improperly admitted but there is other evidence covering the same ground, the error is cured.
Where incompetent evidence was erroneously admitted and later stricken by the trial court on its own motion, the court carefully and explicitly instructing the jury to disregard same, the erroneous admission of such evidence is not a ground of exception where it appears that without the evidence stricken there was sufficient other evidence to support the verdict of the jury.
Where one of the defendants in a prosecution for conspiracy to commit a felony testifies on behalf of the defense, the object of his testimony being to show the improbability of the guilt of the defendants or the organization with which they were connected because, as it was said, the organization had constantly deprecated a resort to violence in the settlement of a strike, it was proper for the trial court to allow the witness to be interrogated on cross-examination as to whether he knew of certain violent acts alleged to have been committed during the pendency of the strike, the scope and extent of the cross-examination of a witness in such cases being largely in the sound discretion of the trial court.
W. H. Heen, City and County Attorney ( H. E. Stafford, First Deputy, City and County Attorney, with him on the brief), for the Territory.
S. B. Kemp, W. B. Lymer and Marguerite K. Ashford
( Watson & Lymer, Marguerite K. Ashford and S. B. Kemp on the briefs) for defendants.
On August 1, 1921, the grand jury of the first circuit returned an indictment against the defendants, the first count charging that defendants “did maliciously or fraudulently combine, or mutually undertake or concert together to commit a felony, to wit, to unlawfully use and cause to be exploded dynamite or other explosive chemical or substance for the purpose of inflicting bodily injury upon one J. Sakamaki, or to terrify and frighten him, the said J. Sakamaki, or to injure, destroy or damage a certain house situate at Olaa * * * which said house was being occupied by the said J. Sakamaki as his place of abode, and that they * * * did then and there and thereby commit the crime of conspiracy in the first degree contrary to the form of the statute in such case made and provided.” The second charged that defendants “did maliciously or fraudulently combine, or mutually undertake or concert together to commit a felony, to wit, to unlawfully use and cause to be exploded dynamite or other explosive chemical or substance in, at, under or against a certain house situate at Olaa * * * which said house was being occupied by one J. Sakamaki as his place of abode, for the purpose of inflicting bodily injury upon him, the said J. Sakamaki, or to terrify and frighten him, the said J. Sakamaki, or to injure, destroy or damage the said house,” etc.
On August 2, 1921, defendants were duly arraigned and their pleas reserved from time to time until September 13, 1921, at which time each of the defendants, being represented by counsel, was asked separately if he understood the nature of the charge against him and if he was ready at that time to enter his plea, which questions being answered in the affirmative, each of the defendants then entered a plea of not guilty.
On January 27, 1922, all of the defendants, through their then attorneys, entered into a written stipulation with the prosecution, which stipulation was approved by the trial judge, stipulating and agreeing “that the indictment and all counts thereof heretofore found against the defendants above named by the grand jury of this judicial circuit on the first day of August, 1921, may and shall be considered and understood as having been found and returned and as reading in the conjunctive instead of in the disjunctive and alternative, and that the said indictment and all counts thereof are not uncertain in that regard or on account thereof, and they, the said defendants, hereby waive any insufficiency in said indictment and all counts thereof by reason of said disjunctive and alternative pleading.” At the time the foregoing stipulation was entered into, the grand jury was in session or within call, and an amendment to the indictment or a new indictment might have been obtained.
The trial was commenced on January 31, 1922, and concluded on March 4, 1922, on which date the jury returned a verdict finding all of the defendants guilty as charged.
The attorneys who represented the defendants throughout the trial have brought the case here upon exceptions, none of which go to the insufficiency of the indictment. At the oral argument on the exceptions before this court, one of the attorneys who conducted the trial on behalf of defendants and who had filed a brief herein in support of his bill of exceptions, expressly stated that he considered himself bound by the stipulation entered into by him on behalf of defendants, that he did not propose to and would not now urge that the indictment against defendants was in any manner defective or insufficient, and that any attack that might now be made against the sufficiency of the indictment was entirely without his support or approval. Notwithstanding the stipulation and the attitude of the attorneys who had appeared for defendants throughout the trial, another attorney, appearing in this court for the first time as an attorney for defendants, has filed herein a supplemental brief in which the contention is made that the indictment is not sufficient to charge defendants with the commission of any crime, and that the verdict and judgment of guilty based on such indictment are contrary to the law for that reason. This attorney at the oral argument contended that the stipulation entered into between the other counsel for defendants and the prosecution was equivalent to an...
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...had addressed it as a matter of jurisdiction. Id. at *1–2 (citing Cummings, 101 Hawai‘i at 139, 63 P.3d at 1109; Territory v. Goto, 27 Haw. 65, 102–03 (Haw.Terr.1923) ). According to the lead opinion, "[n]otwithstanding the Cummings decision that a defective charge undermines jurisdiction,"......
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