Toon v. Territory Hawai`i

• Decision Date: 27 December 1904
• Parties: LO TOON, ALIAS LO CHOON, PLAINTIFF IN ERROR, v. THE TERRITORY OF HAWAII, DEFENDANT IN ERROR.
• Court: Hawaii Supreme Court

16 Haw. 351

LO TOON, ALIAS LO CHOON, PLAINTIFF IN ERROR,

v.THE TERRITORY OF HAWAII, DEFENDANT IN ERROR.

Supreme Court of the Territory of Hawai‘i.

Submitted December 5, 1904.

Decided December 27, 1904.

OPINION TEXT STARTS HEREERROR TO CIRCUIT COURT, FOURTH CIRCUIT.

Syllabus by the Court

An exception taken during the trial is not necessary in order to support a writ of error.

On a charge of an assault with intent to murder the intent is an essential ingredient. It must be proved as is any other fact. It may be proved by circumstantial evidence. The jury may infer intent from the manner of the accused in committing the assault, the nature of the weapon used and of the wound inflicted, the absence of provocation or excuse, and the motive, if a criminal motive is shown.

An objection to the competency of an interpreter or to the correctness of his interpretation does not raise a question of law.

The admission of evidence in rebuttal which might have been offered in chief is within the discretion of the trial court. Evidence to disprove an alibi may be received in rebuttal, although it tends to support the testimony in chief of the prosecution.

Thayer & Hemenway for plaintiff in error.

W. S. Fleming, assistant attorney general, for defendant in error.

FREAR, C.J., HARTWELL AND HATCH, JJ.

OPINION OF THE COURT BY HATCH, J.

This is a writ of error to the circuit court of the fourth circuit. The plaintiff in error was convicted at the November term, 1903, of the circuit court of the fourth judicial circuit of an assault with a dangerous weapon with intent to commit murder upon one Anama. Three assignments of error are here relied upon. As stated in the brief of the plaintiff in error they are as follows: First, no intent to commit murder was shown by the evidence. Second, mistakes in interpretation from Chinese to English were allowed to go to the jury uncorrected over defendant's objections. Third, evidence tending to prove the defendant was near the place where the offense was committed was introduced by the prosecution on rebuttal over the defendant's objections. The testimony shows that Anama was sitting in his kitchen talking with his wife on the evening of the third day of October, 1903; that about six o'clock or later the plaintiff in error suddenly entered the kitchen, swiftly approached Anama, seized him by the shoulder, held a pistol near his head and discharged it and then rapidly left the apartment. It was shown that criminal relations had existed between the accused and the wife of Anama; that she had recently put an end to these relations and had forbidden the accused to approach her. The defense was an alibi. In rebuttal of the alibi the prosecution offered testimony tending to show that the accused was seen near the scene of the assault not long before it took place.

The first assignment of error relied upon is that no intent to commit murder was shown by the evidence. A preliminary objection is made on behalf of the defendant in error that the errors assigned cannot be raised for the time in this court, no exception having been taken at the trial. This was not necessary. This point was settled in Cummings v. Iaukea, 10 Haw. 1. The question presented by this assignment is whether any evidence appears in the record which would support the conviction. We are prohibited from considering the weight of the evidence or any question depending upon the credibility of witnesses. C. L., Sec. 1447. Whether there was any evidence at all, however, is a question of law. Cox v. Drake, 46 N. J. L. 167. The intent to commit murder, as is contended by the plaintiff in error, was an essential ingredient of the offense charged and to support the conviction must have been found by the jury as a fact. It is well settled, however, that the intent need not have been shown by direct proof. What is passing in the human mind is rarely to be proved by direct evidence. The law does not require impossibilities. Even if declarations are made by the accused at the time of the commission of an offense, they do not furnish infallible proof of the intent. The intent of a defendant, when it is essential to be shown, is better proved by evidence of his acts than of his declarations. Henderson v. People, 124 Ill. 607. Nor need the intent be shown by direct and positive testimony, as it may be inferred from circumstances. Com. v. People, 116 Ill. 458. “Specific proof of intent is not essential, but the intent may be proved by evidence of the attending facts and circumstances. *** The jury were justified in taking into consideration the character and manner of the assault; that it was made deliberately with a weapon capable of producing death.” Weaver v. People, 132 Ill. 536. The intent may be inferred from the nature of the weapon. Doolittle v. State, 93 Ind. 272. “The intent with which the act was done is a question of fact either to be shown by the declarations of the party or to be inferred from the character, manner and circumstances of the assault. *** Intent is a matter of fact and cannot be implied as a matter of law, but it may be inferred from the use of a weapon or instrument calculated to produce death, or from an act of violence from which ordinarily in the usual course of things death or great bodily harm may result.” Crosby v. People, 137 Ill. 337. “The intent to kill must undoubtedly be established as an inference of fact to the satisfaction of the jury, but they will draw that inference as they draw all other inferences from any fact in evidence which to their minds fairly proves its existence. Intentions can only be proved by acts as juries cannot look into the breast of the criminal. And where any act is knowingly committed which naturally and usually leads to certain consequences, a jury certainly has the right, in the exercise of ordinary sagacity, to draw the inference that such results are intended.” People v. Scott, 6 Mich. 287, 295. The cases relied upon by the plaintiff in error do not controvert this position. In Roberts v. People, 19 Mich. 401, chiefly relied upon by the plaintiff in error, the question was as to the instructions given to the jury. It was held that the jury should not have been told that if they should find the defendant made the assault alleged, in the manner and with the instrument charged in the information, the law inferred the intent charged, and they were at liberty to find the defendant guilty, whether they were satisfied of the intent or not as a matter of fact; but the court also distinctly held as follows: “By saying, however, that the specific intent to murder *** must be proved, we do not intend to say it must be proved...