Territory v. Kekipi

Decision Date04 November 1918
Docket NumberNo. 1114.,1114.
PartiesTERRITORY v. WILLIAM KEKIPI.
CourtHawaii Supreme Court

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT, FIRST CIRCUIT. HON. W. H. HEEN, JUDGE.

Syllabus by the Court

One cannot take his chances of advantage by not objecting to questions which clearly call for improper evidence and if disappointed in the answer then move to strike out the testimony.

The trial judge should never assume the duties of counsel, but if at any time he becomes convinced that the witness has misunderstood the questions propounded by either counsel and as a result of such misunderstanding the import of his testimony is in doubt it is not only his privilege but his duty to ask such questions of the witness as are necessary to remove such doubt and fully develop the truth in the case.

The trial judge should not in the examination of a witness intimate any opinion upon the facts, assume the prisoner's guilt, or use any expression calculated to prejudice the rights of either party.

It is not a valid objection that the court in examining a witness has asked a leading question. Since the court may in its discretion allow leading questions it may in the proper exercise of its right to ask questions also ask leading questions.

G. A. Davis ( A. M. Brown, City and County Attorney, on the brief), for the Territory.

W. C. Achi, Sr. ( Achi & Achi on the brief), for defendant.

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

OPINION OF THE COURT BY KEMP, J.

This cause comes to this court upon exceptions from the circuit court of the first judicial circuit. The defendant was convicted of the offense of keeping intoxicating liquor for sale without a license and fined $1000. Various exceptions were noted during the trial, thirteen of which were embodied in a bill of exceptions and brought here for review. The defendant, however, in his oral argument abandoned and withdrew all of his exceptions except those relating to the action of the court in interrogating witnesses during the course of the trial. We will therefore consider only those exceptions which complain of the action of the court in propounding questions to the witnesses and will not examine the exceptions seriatim but will treat them in a general way.

The principal exception relied upon by the defendant relates to the refusal of the court to grant his motion to strike out the questions propounded by the court to the witness William Haupu and his answers thereto for the following reasons set forth in the motion:

“1. That the court went beyond its province and duty in asking said questions.

2. That on account of said questions, it assumes the prisoner's guilt.

3. That the court's intimations through said questions are likely to influence the jurors, and to defer to them in rendering their verdict.

4. That the said questions would give to the jury the impression that the court has determined that the accused is guilty.

5. That said questions asked by the court would tend to prejudice the accused.

6. That some of the questions put by the court were leading and therefore improper as being contrary to the rules of evidence.”

A transcript of the questions and answers which the defendant desired stricken was attached to the motion.

It sometimes happens that answers are made to questions unobjectionable in themselves and improper testimony volunteered to which there was no opportunity to object in advance. In such a case the proper remedy is to move promptly to strike out the objectionable testimony. But one cannot take his chances of advantage by not objecting to questions which clearly call for improper evidence and if disappointed in the answers then move to strike out the testimony thus elicited. Jones' The Law of Evidence, Vol. 3, Sec. 898.

From an examination of the record we find no objection interposed to the examination of the witness by the court or to any of the questions propounded by the court. The motion to strike out the testimony was the first objection to this procedure and came on the following day of the trial, after the witness had been dismissed from the stand. If the objections now urged that the court had no right to examine the witness at all and that some of its questions were leading and some assumed the guilt of the accused are valid the defendant could and should have interposed his objection at the time the questions were asked and before they were answered instead of taking his chance of gaining an advantage and when no advantage materialized then moving to strike out the testimony. But even had the objections now urged been interposed at the proper time we would not be inclined to hold that reversible error was committed.

Before the interrogation of the witness by the court began evidence had been adduced which showed that the defendant occupied rooms in a tenement at Kamanuwai lane and Beretania street at which place the prosecution was seeking to show that he kept beer for sale. Part of the testimony of the witness Haupu was to the effect that he (the witness) had purchased various quantities of beer for the defendant at various times and had delivered it to defendant at his said rooms. Either because the witness did not understand the import of the questions asked by defendant's counsel on cross-examination or because the interpreter, with whom the court and counsel had difficulty, did not efficiently perform his duties or because the witness was not attempting to tell the truth, at the time the court began the examination of the witness which elicited the evidence which the defendant sought to have stricken, it was impossible to tell what the witness was claiming as to the quantity of beer he had purchased for defendant. In order to satisfy himself whether or not the witness understood the questions to which he had answered the court asked the witness a series of short and simple questions, some of which were leading, covering the same subject upon which both the prosecution and defense had examined him, the subject being the time and place of the various purchases of beer by the witness for the defendant and the quantity purchased on each occasion.

In ruling upon defendant's motion to strike the evidence thus elicited the trial judge said that he believed the witness had not understood counsel's questions and we infer that to be the reason he repeated the examination. The trial judge should never assume the duties of counsel, but if he at any time becomes convinced that the witness has...

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4 cases
  • 78 Hawai'i 115, State v. Silva
    • United States
    • Hawaii Court of Appeals
    • March 13, 1995
    ...facts, assume the prisoner's guilt, or use any expression calculated to prejudice the rights of either party' " (quoting Territory v. Kekipi, 24 Haw. 500, 504 (1918))). Since the due process clause in section 5, article I of the Hawai'i Constitution is identical to the due process clause in......
  • State v. Culkin
    • United States
    • Hawaii Supreme Court
    • November 30, 2001
    ...trial judges to both summon and question witnesses. See Kamahalo v. Coelho, 24 Haw. 689, 694 (1919) (calling witnesses); Territory v. Kekipi, 24 Haw. 500, 504 (1918) (questioning witnesses).21 HRE Rule 614 codifies these principles, permitting a trial court to both interrogate witnesses and......
  • State v. Hutch
    • United States
    • Hawaii Supreme Court
    • October 19, 1993
    ...witnesses has long been recognized as fundamental in the Anglo-American adversary system." The commentary further cites Territory v. Kekipi, 24 Haw. 500, 504 (1918) for the following principle:The trial judge should never assume the duties of counsel, but if he at any time becomes convinced......
  • Territory of Hawaii v. Kekipi
    • United States
    • Hawaii Supreme Court
    • November 4, 1918
    ...24 Haw. 500 TERRITORY v. WILLIAM KEKIPI. No. 1114.Supreme Court of Territory of Hawai'i.November 4, Argued October 25, 1918. EXCRETIONS FROM CIRCUIT COURT, FIRST CIRCUIT. HON. W. H. HEEN, JUDGE. Syllabus by the Court One cannot take his chances of advantage by not objecting to questions whi......

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