10 Haw. 601 | Haw. | 1896
OPINION OP THE COURT BY
The defendant was tried and convicted in the District Oonrt of Honolulu, and again, on appeal, in the Circuit Court, First Circuit, on a charge of sexual intercourse with a female under fourteen years of age. The case now conies to this court on exceptions which raise the questions of (1) the sufficiency of the charge, (2) the constitutionality of the statute under which the charge was made, (3) the admissibility of certain evidence, and (4) the correctness of certain instructions requested but refused.
The charge was stated to the court and jury in the Circuit Court by the Deputy Attorney-General, who prosecuted the case in that court, as follows: “C. G. Parsons is charged with violating Section 9, Chapter 13 of the Penal Code at Honolulu in the Island of Oahu, and within the jurisdiction of this court during one month next preceding the 12th day of October, 1896, and particularly on October 10th, 1896, for that he did during such time and at such place and upon said date have unlawful sexual intercourse' with a female under the age of 14 years, to wit, with one Constancia Rodrigues.” The charge is set forth in substantially the same words in the record sent up from the District Court on the appeal, and the case is there
The exception chiefly relied on is that which raises the question of the constitutionality of the statute under which the charge is made. The contention is, that the statute is in conflict with Art. YY of the Constitution of 1864, then in force, which provided that “Every law shall embrace but one object, and that shall be expressed in its title.” The argument is: that the statute in question, Sec. 9, Ch. 13 of the Penal Code of 1869, was first enacted, in 1864, as “An Act to Amend Chapter
TRe first exception relating to the admission of testimony was taken to the overruling of defendant’s objection to the' court’s allowing the girl with whom'the offense was alleged to Rave been committed to testify, without first Raving informed her of her privilege of refusing to give testimony that would tend to criminate her. This was the privilege of the witness herself and not the right of the party against whom she was called, and the court was not bound to so instruct her, on the interposition of such party alone and in the absence of any objection by the witness herself. Com. v. Shaw, 4 Cush. 594.
An exception was taken also to the admission of the testimony of the district magistrate as to what Rad been said by the defendant in the trial before Rim. TRe objection is, that the magistrate read Ris record, that is, Ris minutes, which were not a record admissible as such, and that Re did not use it merely for the purpose of refreshing Ris memory. TRe magistrate testified that the record was written by himself at the time the defendant gave Ris testimony, and that the record contained a correct statement of what the defendant Rad said; and, in answer to the defendant’s objection, the court ruled that the witness might use Ris record for the purpose of refreshing Ris memory. TRe witness was then asked to state, refreshing Ris memory from the record, what the defendant Rad said. He then read Ris minutes. The record itself was not put in evidence. In our opinion, the rule which permits the use of a writing for the purpose of refreshing the memory, was sufficiently compiled with.
An exception was taken to the refusal of the court to instruct the jury as requested, that “the age of the girl must be proved by sworn testimony, and that you are not to take
The requested instruction, that “in order to render her (the girl’s) evidence credible, there should be some corroborating and concurrent testimony by some other witness or witnesses of time, place and circumstances, tending to prove the charge against the defendant, otherwise you must acquit him,” was also properly refused. There is no rule which makes such corroborating testimony absolutely essential in a case of this kind. See The King v. Wo Sow, 7 Haw. 734. Moreover, there was such testimony in this case.
There were exceptions to refusals to give other instructions as requested, but these seem not to be relied on and need not be considered.
The exceptions are overruled.