Territory v. Oneha

• Citation: 29 Haw. 150
• Decision Date: 08 May 1926
• Docket Number: No. 1631.,1631.
• Parties: TERRITORY v. SAMUEL K. ONEHA.
• Court: Supreme Court of Hawai'i

29 Haw. 150

TERRITORY

v.SAMUEL K. ONEHA.

No. 1631.

Supreme Court of the Territory of Hawai‘i.

Argued March 11, 1926.

Decided May 8, 1926.

EXCEPTIONS FROM CIRCUIT COURT FIRST CIRCUIT. HON. J. J. BANKS, JUDGE.

(Perry, C. J., dissenting.)

Syllabus by the Court

Evidence of other crimes similar to that charged is relevant and admissible when it shows or tends to show a particular criminal intent which is necessary to constitute the crime charged. That this evidence incidentally proves independent crimes is immaterial.

Evidence held to be sufficient to sustain verdict.

An instruction to the effect that the jury may in determining the degree of credibility to be attached to the evidence of the defendant take into consideration his interest in the result of the prosecution, held, on the authority of Territory v. Awana, 28 Haw. 546, to be nonprejudicial error.

H. L. Wrenn, Deputy City and County Attorney ( W. H. Heen, City and County Attorney, and E. K. Massee, Deputy City and County Attorney, on the brief), for the Territory.

S. C. Huber ( Huber & Kemp and H. T. Mills on the briefs) for defendant.

PERRY, C. J., LINDSAY, J., AND CIRCUIT JUDGE PARSONS IN PLACE OF BANKS, J., DISQUALIFIED.

OPINION OF THE COURT BY LINDSAY, J.

The defendant was convicted of the crime of embezzlement it being charged in the indictment that he, on September 11, 1918, being at that time chief clerk of the Honolulu water works department, did embezzle the sum of $44.15. The case comes here upon exceptions under which it is contended (1) that the trial court erred in admitting evidence of offenses similar to that charged in the indictment; (2) in the giving of and refusal to give certain instructions; and (3) that the verdict of the jury was contrary to the law and the evidence and the weight of the evidence.

For a proper understanding of the matters urged as error it is necessary that the system employed by the water works department in the collecting and crediting of water rates be explained. This system is the same as that described in the opinion of this court in the case of Territory v. Awana, 28 Haw. 546, where a conviction of a similar embezzlement of water works funds was sustained. The system is as follows:

When an application for the use of city water is granted it is designated by a privilege number. Each consumer is given a ledger card bearing his name, address and privilege number. Before payments are due, receipts in duplicate, the duplicate being called the “stub,” are prepared and bound in holders. Consumers are charged for water used either upon a flat rate or upon metre measurement. These bound receipts and stubs for all practical purposes constitute the current records of the department. These are arranged in sequence according to the privilege number commencing with number one and ending with the highest privilege number issued. Shortly before a payment of water rates becomes due a post card notice is sent to the consumer. When the consumer comes to pay his water rate, the receipt bearing his privilege number is stamped paid with a timing receipt stamp, said stamp appearing upon both the receipt and the stub. At the same time the receipt and stub are numbered with an automatic numbering machine, the same number being stamped on both the receipt and the stub. This machine registers consecutive, repeat and duplicate only. This number shows the order in which payments are made. It is also the custom to have the clerk issuing the receipt sign or initial the receipt and stub as a means of identifying the person issuing the same. Upon making payment, the receipt and stub are torn from the binder, the receipt handed to the consumer, and the stub placed upon a file having two upright steel posts. The money received is put in the cash register which, during the period involved in this case, was accessible to defendant, Enoch Johnson and Awana, and perhaps to several others. Payments as shown by the stubs are next entered in the cash book consecutively in the order in which these payments have been made as shown on the stubs. At the time involved in this case these entries in the cash book were usually made by Awana on the same day upon which payment was made, although at times, owing to pressure of business, not until the following day. At the close of each day the amount of the cash received as shown by the stubs was added up; the cash from the cash register was counted; all checks and drafts were indorsed by the chief clerk; and all payments received for the day were turned over to the city treasurer. This was usually done by the chief clerk but at times was done by others. The chief clerk indorsed all checks regardless of who took check in payment. The accounts of all consumers were kept upon ledger cards arranged according to their privilege numbers. The payments shown by the stubs on file were posted upon the ledger cards whenever the clerks found time, there being no regular time for this. Those who ordinarily received cash and gave receipts at the paying-counter were defendant, Awana and Johnson. Upon rare occasions perhaps others gave slight assistance in this part of the work. At the time in question the defendant was chief clerk in the department, James P. Awana was bookkeeper and Enoch Johnson was ledger clerk. Awana's principal work was to enter payments in the cash book; Johnson prepared and filled out the stubs and receipts referred to, and also did most of the posting from the stubs to the ledger. Occasionally defendant made entries in the cash book and at times defendant and Awana helped to post the ledger cards. After the stubs were entered in the cash book and after they had been checked by the auditor with the cash book they were bound. The auditor checked the stubs against the cash book about once in six months. He made no thorough examination of the ledger cards in connection with the cash book and never checked the ledger against the cash book. Defendant testified that the auditor had audited the books but that never, to his knowledge, had the auditor checked the ledger cards against the cash book.

Certain pages of the cash book in the office of the building inspector, where defendant had previously been employed, were identified as being in the handwriting of defendant and used as examples with which certain records were compared for the purpose of showing similarity of handwriting. Defendant admitted that certain pages of said cash book were in his handwriting. The entries in the cash book of the water department from August 1, 1918, to August 17, 1918, were admitted by defendant to have been made by him, as were certain other pages of the cash book. Up to the time of the trial, the retained stubs for the years 1917, 1918 and 1919, except a few for 1919, had not been found. During the trial a few of the stubs for 1917 and 1918 were found. The figures “5421” on one of these (Ex. G 4) were written in pencil in the handwriting of defendant. The deputy treasurer of the city and county testified that on September 14, 1924, certain records, including the deposit slips from the water works department covering the period January, 1915, to January, 1924, had disappeared from the office of the treasurer and although search had been made these had never been found.

A check, dated September 11, 1918, drawn by the Kamehameha Schools, in favor of Honolulu water works, for $44.15 was admitted in evidence. This was admitted to have been indorsed in the handwriting of defendant. This sum of $44.15 was the amount that defendant was alleged to have embezzled. This amount was shown by the undisputed evidence never to have been entered in the cash book of the water works department nor ever to have reached the coffers of the city treasurer. No receipt was found. On the back of the check is written the privilege number and a statement to the effect that a receipt was neither demanded nor desired. The retained stub was not found. The ledger card of the Kamehameha Schools, being privilege No. 4556, was admitted in evidence and thereon was found an entry of $44.15 purporting to have been paid on September 7, 1918, and referring to stub No. 6546. An expert on handwriting testified that this entry was in the handwriting of defendant. The defendant, however, denied that this entry was in his handwriting or that he had made the same. Page 424 of the cash book (admitted to be in handwriting of defendant) shows that stub No. 6546, as there entered, is for $33.10, privilege 7414, September 12, 1918. Privilege No. 7414 is that of Pantheon block, or J. M. Dowsett, and the ledger card for...