Territory v. Kobayashi

• Decision Date: 05 February 1921
• Docket Number: No. 1305.,1305.
• Parties: TERRITORY v. KENICHI KOBAYASHI, NAMARU FUJITA, KOSHICHIRO FURUSHIO, AND SAKUSUKE TAKAMAKU, ALIAS SAKUSUKE TAKAMATSU.
• Court: Hawaii Supreme Court

25 Haw. 762

TERRITORY

v.KENICHI KOBAYASHI, NAMARU FUJITA, KOSHICHIRO FURUSHIO, AND SAKUSUKE TAKAMAKU, ALIAS SAKUSUKE TAKAMATSU.

No. 1305.

Supreme Court of the Territory of Hawai‘i.

Argued January 25, 1921.

Decided February 5, 1921.

MOTION TO DISMISS WRIT OF ERROR..

H. E. Stafford, Third Deputy City and County Attorney, for the motion.

C. W. Ashford, contra.

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

Per Curiam:

This is a motion to dismiss the writ of error issued in the above entitled cause on the ground that the plaintiffs in error have failed to file the necessary papers to constitute the record as provided by law and the rules of this court, although more than twenty days have elapsed since the issuance of said writ, in that there is no transcript of the evidence among the papers filed and that plaintiffs in error in their praecipe did not request the clerk of the circuit court to include the transcript of evidence as required by law and the rules of this court and that a transcript of the evidence in this case is necessary for a proper determination of the issues raised by the assignments of error as shown on the face thereof.

It is alleged in the motion and borne out by the record that the plaintiffs in error in their praecipe requested the clerk of the circuit court to send up a partial transcript of the evidence, which partial transcript has been filed, but it is further alleged in said motion that said partial transcript of the evidence is not sufficient to enable this court to determine the issues raised by the assignments of error.

Section 2524 R. L. 1915 as amended by section 4 of Act 44 S. L. 1919 prescribes what the record on writ of error shall be deemed to include and is as follows:

“The record shall be deemed to include the judgment, order or decree and the pleadings, and such other papers and things, including the verdict, decision, rulings, instructions, notes of exceptions, motions, clerk's minutes, exhibits, and transcript of the evidence, as may be designated in a praecipe filed by the plaintiff in error.”

Rule 1 of this court is in part as follows:

“If the necessary papers are not filed in this court within twenty days after the issuance of a writ of error, perfecting of an appeal or allowance of a bill of exceptions or such further time as may be allowed by this court or a justice thereof the appeal may be dismissed for want of prosecution.”

It of course cannot be successfully maintained in every case brought to this court on writ of error that a transcript of the evidence is necessary to a determination of the issues raised by the assignments of error. This would be especially true in a case where a demurrer to the sufficiency of an indictment had been overruled and the defendant after conviction came to this court on writ of error and assigned no other error than the ruling on his demurrer to the indictment. Under no circumstances can we conceive that a transcript of the evidence in such a case would be a necessary part of the record. Other circumstances might be recited under which a transcript of the evidence would be unnecessary.

We think therefore that the solution of the question presented by the motion to dismiss the writ of error, namely, whether we have before us a sufficient record from which we may determine the issues raised by the assignments of error, depends upon an examination of the assignments of error and the partial transcript of evidence on file. If any one or more of the assignments of error can be passed upon with the record brought up clearly the Territory is not entitled to have the writ dismissed, but the case would be retained for the purpose of passing upon such assignment or assignments of error as can be examined and determined upon the record before us.

The first assignment of error after reciting facts which show that the plaintiffs in error were indicted for an assault upon Mahachi Ogata (a fact borne out by the record) continues as follows:

“That upon the trial of said indictment, one Ogata (claimed by the prosecution to have been and to be the person alleged in and by said indictment to have been assaulted by said defendants), having been called as a witness for the prosecution therein, was asked by the prosecuting attorney to state his name, and said witness then and there stated his name to be Manpachi Ogata, and there was no testimony adduced upon said trial tending to show that the name of said last named witness was other than, or different from the name so testified by him as aforesaid, to wit, Manpachi Ogata,-nor was there any testimony adduced tending to prove that the assault charged in and by said indictment had been committed upon any person other than said last named witness.

And counsel for said defendants, having at the close of the evidence taken upon said trial, and before said cause was argued or submitted to the jury therein, moved the court for an instruction to the jury to return a verdict of not guilty against said defendants, and each of them, because of the variance between the allegation of the indictment and...