*1 obvious such he as cognizant, of which stances dispute. affecting property unconcealed activities the evidence knowledge where with charged He will him- informed could have that he leads to the conclusion ‘diligence’ degree of the facts self where diligence ‘reasonable’ law exacts —described —or such as to were cognizant he was circumstances of which inquiry.” ‘ordinary’ prudence a man of put Affirmed. for appellants. on the briefs) Houston (also
Brahan & Oades him Beebe E. Cose (Smith, Wild, Gilbert for brief) appellee. on the HA WAII v. KATHRYN D. FOSTER. OF
STATE
No.
August 16, 1960. Cassidy, C. Tsukiyama, J., Marumoto, Wirtz JJ. Lewis, *2 WIRTZ, OP THE COURT BY J. OPINION Dennison Kathryn Defendant-plaintiff Foster, Error, referred to “defendant” was indicted hereinafter Degree, for Murder in the Second Jury Grand Territorial of her Francis killing for the husband, in March 1959, Army a retired Colonel. Cecil Foster, January years prior there- and for On several 16,1959, two-story duplex lived in a and her husband defendant to, living apartment Ala room, at 2003 Wai Boulevard. laundry area were on first while floor, kitchen storage, used for were one of which was bedrooms, on the second floor. located January approximately on
At 1:33 17, 1959, A.M., hospital corpsman the Hawaiian James Edson, apartment pursuant Armed Services arrived at the Police, opening the to a radio call. While screen door he heard saying “Help help help him.” “God him, him, glass help Upon entering, inner him.” after the door God body he defendant and the nude unlocked saw her, lying resting on his back head with his decedent, right plastic trays ice cube on his left cheek. his cheek, *3 pools living on the room He noticed two of blood floor, “partially the other one of which was smeared while coagulated.” was proved to resuscitate the decedent Edson’s efforts futile officially Wong pronounced and Ur. Richard Colonel upon autopsy Foster dead his arrival at 1:55 A.M. The performed pathologist Majoska Dr. on deceased Alvin in disclosed a bullet wound the midline of the neck in the back at the area near the hairline. The bullet had cut through spinal the cord at the first cervical im- vertebra mediately directly passing behind the forward and skull, lodging plane behind the left middle incisor tooth. The path approximately determined of the was bullet’s parallel ground body if surface had been in an position. autopsy presence, erect The further revealed approximately in of of the blood stream three deceased, milligrams ethyl per alcohol cubic and a half centimeter of blood. findings and
Based on his observations as result of Majoska opinion, appears autopsy, Dr. was evident from the it was not self- nature wound probably the deceased intoxicated and inflicted; was not conscious at the time of that the fatal wound his death; not a contact of a ricochet; was wound nor result death was almost instantaneous. registered
The fatal a .38 calibre Colt revolver gun, Cyril decedent Gomes on discovered Officer was There still a top shelf of the front bedroom closet. was faint and two fired shells exploded gunpowder smell In front of the cylinder. and four in the cartridges were cloth covered chair with a closet the officer noticed a seat. depression a bullet hole although
No second bullet was located, corresponding in the inner door discovered room. The living hole in the outer door of lower down slightly outwards. hinge bulged outer door lower next door the same Mrs. Ethel who lived Carrilho, that she heard loud testified two duplex with Posters, minutes between 10:00 apart about five or reports seven January which sounded during evening and 10:30 of an automobile. like the backfire Emiel Carrilho and Victor testimony Mrs. the Posters often indicated another neighbor, heard during no such although quarreling quarreled, testified that defend- Mrs. Carrilho question. the night on at least had two killing, a month before about ant, stating her some- threatened husband, or three occasions *4 kill him. Mr. Emiel a and that would gun about she thing after 8:00 P.M. anywhere from that quite often, stated the loud and audible he had heard till 2:00 A.M., about apartment from the emanating voice of woman Foster and out.” up get “pack person the other telling the Honolulu Police De- at employed Tom, Edward and by stipulation Analyst Specialist a Crime as partment analyst an and as well as chemist expert an as accepted chemical reagent testified from the expert ballistics, to the wax taken of defendant’s applied impression hands, of nitrate he concluded that there was small amount on conducted on hand. Similar tests present right of decedent indicated a reaction on both positive the hands hands. These indicate of simply tests the presence substance nitrate such containing as “gunpowder,” “tobacco and the No ash,” objection like. “fertilizer,” made as to the but an objec- inconclusiveness of these tests they tion was made to the manner in which were obtained. We for the purposes assume, opinion, these are to the subject statutory requirement tests they obtained. voluntarily by Ballistics tests conducted Mr. Tom identified the found gun by Officer the bedroom closet Gomes as the fatal Further gun. tests indicated that deceased killed a contact wound but that the weapon was fired distance at a than 15 from the greater inches wound. Tom
Tests made Mr. on samples blood from the one two of which was the floor pools, smeared, living on the room; stairway ewa wall leading second the floor the kitchen floor; and tray wash in the them laundry showed to be human area; blood upon type the same blood and, as that of comparison, deceased. testimony
From both defendant’s she deceased had been on the drinking evening January Defend- ant two drinks of poured bourbon recalls, least, over an ice cube. The deceased was a drinker. heavy He and entertaining. wife did little his Defendant testified that “encouraged” very frequently he her as often drink, two three times a she week, although was reluctant so. to do
Defendant the fatal gun testified had been pur- Little Arkansas that she had Rock, chased been *5 to it
taught how use She also that she deceased. stated did exactly not know the gun kept although where was she general was aware of its and that the last location had it of time she seen was in the latter 1958. part oc- She testified some detail about the events that curred from the time she arose on that fateful morning until the return of her from shortly after husband his walk They that then for a early evening. sat down pleasant least felt After she had at two she conversation. drinks that her testimony Her next recollection was drowsy. from up something or which she cleaning wiping floor, hazy thereafter was Everything believed to blood. not clearly talking her. that she does recall She stated taken officers or around any police people her, being or being given any although to any specific place tests, about something removing rings. she does remember her in the recollection hazy period this covering detail later greater be discussed defendant will de- of the question admissibility this when the opinion and the results of oral and written statements fendant’s are considered. nitrate tests character witnesses, two Besides Dr. Richard D. for the defense was only other witness He testified that he psychiatrist. a recognized Kepner, defendant on two occasions after had examined an about hour each occasion; event for fateful mainly talking her consisted examinations these by counsel. Kepner information Dr. checking supplied the trial defendant did the time of that at concluded on the Janu- night had happened then remember what just unable state when He ary 16, it quite the de- possible but began, amnesia have may performed acts she not aware fendant was killing. He further testified at the time night mental aberrations and feign forget- possible that was *6 where true especially this out that was fulness and pointed of period for a definite of memory person lapse has time. the evidence considering
The after May on jury 9,1959, returned a the of court and the instructions presented Second in the of as of Murder charged verdict guilty June on 26, for trial was denied A motion new Degree. ato max- sentenced and thereafter was Defendant in Oahu Prison. thirty years imum term of this judgment. from appeals now the error assignments generally
The four raise first contrary to the was the verdict of subject whether and the of the evidence weight the evidence, law, evidence sufficiency of the only question pose support the verdict. “a cannot It is that verdict well settled Hawaii that court on it is by merely ground set aside this upheld of the it must be against weight evidence if and a new trial refused there is substantial evidence, the find tending more than a mere support scintilla, rendered.” v. ings necessary Territory verdict 32 rule has stated dif Young, Haw. 634. This been many ferent court on occasions. ways by Territory 39 v. et Haw. als., v. Haw. Lii, 574; Territory Ebarra, 36 Haw. v. 567; Territory v. 488; Territory Schumacher, Lam 23 Haw. Gagarin, 1; Territory Bo, 718; 36 Haw. Rep. 21 Haw. Haw. v. Territory Chung Nung, 214; 12 Haw. Yamane, clearly
A the record in this case indicates review the verdict of ample support there was jury. Foster died a result of a bullet wound Francis Cecil level of the first clavicle in the midline of neck at the in the nude body He had been shot back. His vertebra. apartment. on the first floor lying was found revolver was found floor apartment. second Dr. Pathologist Majoska Alvin testified that in his opinion time of deceased, intox- probably his was death, icated and death almost instan- unconscious; taneous and that “could ; he not conceive the wound have been self-inflicted.” Tests conducted Crime Laboratory Analyst Edward Tom led him to conclude the wound was not a contact one and that the deceased fired upon from a greater distance than 15 inches. from Aside Dr. it clear Majoska’s seems from the opinion, very nature and location of the wound as established the evidence self-inflicted.
There had no entry been forcible or disturbance of pointed the and the apartment quite conclusively evidence to killing by a someone within the apartment. There had been neighbor no unusual noises heard the living the save for the loud adjoining two noises duplex, spaced apart five or minutes about 10:00 or seven 10:30 P.M., which sounded like the of a backfire car. decedent
Prior the and the killing, defendant had had on they many been in the drinking; occasions and past drunk together the defendant had quarreled; her on at deceased) threatened husband least (the two month or occasions about a before the killing. three of blood been having There evidence wiped up in the throughout especially apartment, living room, James prior hospital to the arrival of Edson, corpsman. The defendant familiar with the fatal having gun, to it her husband it been fire when was first taught acquired. counsel for the
Faced with this defendant evidence, it throughout that while was, contended course, has that highly it defendant possible improbable, still was He intentionally urges killed her husband. the more of the facts was an interpretation accidental kill- logical the jury, made to undoubtedly argument was ing. This and jury for a question and as this was properly so, to decide. not this Court for an appel maintained consistently
The courts have with jury the province late cannot invade court and the verdict determining the respect facts, as ordinarily taken is the evidence jury dependent and Appeal C.J.S., court. 5A appellate conclusive on the p. Homicide, 500, 26 Am. 262; 1647, p. Jur., § Error, § support also might 505. the evidence Merely because a for reversal ground no contentions supporting believed such may not have since the contentions of counsel. rejected have may testimony, *“* * juris rule it has been the established long a court appellate not province diction to disturb the verdict reconcile the case or evidence clearly contrary unless the same judgment ** *” Kinoshita, Haw. Territory 335, evidence. 93 P. 2d 200 Wash. Donckers, In State 357: page court observed at con- tending circumstantial
“Whether the crime to moral appellant excludes, nect hypothesis other reasonable than every certainty, for the guilt question appellant’s jury, for the court. *8 “ direct or ‘The of the whether weight evidence, the jury. is a matter for When circumstantial, for say evidence is of the latter it is kind, every hypothesis it reasonable con- whether excludes ** *’ ” of the accused. sistent with innocence court in held Territory Schumacher, supra, And this not be disturbed guilty that a will because verdict there was competent a mere conflict in evidence where out at support it, pointing and evidence to substantial weighing “court is concerned with page conflicting credibility evidence passing upon nor it deter- witnesses, trespass upon will the function of mining the ultimate the exclusive which is within facts, province of the conflict in they having resolved the jury, favor of the and their Territory against by the defendant verdict of guilty.” there was no lack of sufficient
Consequently, to sustain the verdict and the if judgment would stand there were no error in the remaining assignments error to be considered.
Assignments Error Nos. 5 and 6 allege that trial judge erred in admitting into over evidence, objec- both oral tions, statements, of the de- written, fendant and the results nitrate tests paraffin performed on the It defendant. should noted that objection directed towards the manner which the nitrate paraffin tests were conducted rather than to the inconclusiveness of the results.
The oral statements were made to James Edson, at the and the other hospital corpsman scene, investigating John officers, including Detective Dickson and Officer Faria. The Christopher written statement stenographic was made the defendant being while questioned Detective Dickson at Department. Honolulu Police Defendant that these statements contends were improperly admitted into evidence because “the defendant was not a mental condition appreciate what statements she was making to be able to freely voluntarily make such statements.”
R.L.H. “No provides: confession shall 222-26, § be received first in evidence unless made to appear tried judge being before whom case that such * * *.” voluntarily confession in fact made consistently
This court maintained has where is more than a scintilla of evidence there to sustain the
413
vol-
the statement was
the trial
judge
conclusion of
into evi-
may
accepted
made the confession
untarily
245. This is so
38 Haw.
Patterson,
dence.
v.
Territory
the confession
not warned
defendant was
even if the
v. Alcosiba,
him in court. Territory
against
would be used
or confes-
fact that an admission
231.
Also,
36 Haw.
while
custody
police,
made while
sion was
its admissibil-
not affect
under
will
arrest,
in confinement
Young
made.
voluntarily
Territory
it was
providing
ity,
Haw.
Territory
Aquino,
In v. Young supra, Territory determine a preliminary hearing upon that where, the evidence is character of voluntary confession, if supported by of fact findings court, conflicting, mere are conclusive than a scintilla evidence, more See also State v. admissibility. questions upon Haw. Ponteras, hearing out of the preliminary presence
During for the following presented of the jury, the admissibility determination of these trial judge’s statements. who was the first hospital corpsman
James Edson, he at the testified that when went over to to arrive scene, on the the defendant sat on a coffee body lying floor, him. “My help help nearby repeating, God, him, table asked something.” let him die. Do When what had Don’t that he had fallen the defendant said and hit happened, “My kept repeating God, help head. She herself, his A him. Don’t let him die.” little later she help said, him, a gun in here some There’s some gun place. “There’s asked Edson had called for an When who place.” “I called Tripler.” the defendant He replied, ambulance, that she also made these statements. “I’ve given testified life. did he it? my Why ten do years Why him the best *10 álá help
did he do it? God him.” both “We’re educated Why people. should he do this?” “I didn’t mean to kill help him. God him. Don’t let him die.” Edson also testi- hysterical fied that the defendant or erratic. She was straightforward talking slurring was with no noticeable speech. difficulty understanding He had no He her. questions except inquire no had asked what had taken place and who had for an called ambulance. Christopher police
Officer the first officer Faria, on arrived at and 1:45 was with scene, A.M., for about an hour. He testified that she the kitchen was sobbing upon keep her arrival; his he her asked loudly. crying quite During voice as she down talking. time he there she did most of the her, with Her “He statements forced me to drink. I don’t included, like stuff. I He don’t him to knows like drink. He was mad with me.” must “He have himself.” shot “Please help “May- Get him me. out of here. Get him of here.” out Ibe shot him.” “The is near chair the wardroom door. gun And I if the must him.” have shot “You there, liquor just just I him.” “I I know smelled knew it. drinking again. got he had been I mad knew with him. I I that.” don’t I didn’t like if did it.” “Oh, know She informed Officer Faria of the events that occurred from picked up the time at she school she where was em- ployed previous at about 2:00 o’clock the afternoon until early part evening She before. mentioned the story gun acquired it had itself—how been and how taught her husband had her to use it. Officer Faria testi- difficulty understanding fied that had he no her; she throughout despite crying sobbing was coherent her and although appeared hysterical. and dazed she accompanied Tom Edward testified that he had together police police defendant, matron, appeared although hyster- station she dazed and clearly times. He also at all her lie could understand ical, morning of on the 4:15 A.M., that at about testified explain- Laboratory, January after Police at the 17,1959, if he could ing process the defendant he asked her, readily paraffin she on her which test hands make agreed. briefly that he talked Dorr Barrett testified
Detective 2:45 at about A.M., at the scene to the defendant morning January. again her talked to He 17th of morning police time at the station, later *11 day gave lead- of the events of the account she a detailed killing. ing up had no that he testified to the He, too, understanding difficulty al- that her on either occasion; hysterical though dazed and cried and seemed had she cry police at the did not station. at the she scene, first talked that he John Dickson testified Detective morning of about 5:00 o’clock defendant at January She Honolulu Police Station. at the hap- had that she wasn’t sure what at that time stated something her husband pened, about remembered but presume “I being of his death she said, hurt. told When happened, asked what I am here.” When because he is, might I I’m killed him. don’t know. “I have she said, response question, that to a then She stated, not sure.” apart- being present anyone in else not recall she did and herself. In she fact, her husband than ment other guests they for in their home some had had not said that gun used the that she had before, time. She also stated night using that morn- before or it the not recall but did stenographic ing. state- her consent, Thereafter, having read After this statement from her. ment taken prior page following day, and initialed each she signed the last one. that she remembered little testified
The defendant having following recalled dinner. She the events about finished the housework her while husband had to gone buy bottles of two bourbon After whiskey. the dinner dishes were cleared they sat to talk and away, down had a few drinks. She felt and her next recollection drowsy, mopping up from something the floor. She next re- membered being the kitchen with around people her. Why these were there people or who they were she was not certain. She did not recognize any the parties: Tom or who had Edson, Faria, Barrett, already Dickson, testified. She did not recall talking anyone or anything said. She recalls moved from being place and place something being said about her removing rings on her something being put hands. Psychiatrist Dr. Richard D. called as a defense Kepner, testified that he had examined the witness, defendant on two occasions subsequent January He further 17,1959. testified amnesia means “forgetfulness to a degree * * * pathological to an extent it amounts to really an or a symptom illness of an that although illness”; amnesia could from develop drinking two or three alcohol, ordinarily drinks would not induce amnesia, especially person when accustomed He drinking. stated *12 person a state of amnesia would be able to answer questions on events about which he had no recollection. He further that a can person feign said amnesia; was especially person forget so where the tends to the essen- a particular pointed tials of crime itself. He also out that a person might quite know well what he at doing is the moment and from directly afterwards suffer amnesia. the trial court
After this admitted preliminary hearing, that it holding into evidence statements tests, jury an “ultimate fact for the determine question” All they voluntary foregoing whether or not. of the were jury. adduced before the testimony again The record indicates that there was no evidence clearly
417 of any any force or of immunity offers or threats, hope of reward made by anyone to induce to give or In paraffin statements submit tests. most fact, of the statements made at the scene were volunteered by the defendant without questioning by anyone. Defendant nevertheless contends and submission statements could not be voluntary tests since she was suffering from because of mental amnesia, would, incapacity, make her statements involuntary as a matter of law.
The rule generally in the prevailing absence of that, at insanity mental neither depletion time, vol untary character of a confession or statement nor its ad missibility affected the mental instability of the person it. That making condition is one for the consider ation of determining weight or effect to be to the confession given or statement. v. United McAffee 70 D.C. 142 App. 105 F. States, 2d (1939), Blackburn 21; v. 38 Ala. 88 So. 2d State, App. 143, People v. 199; Rucker, 11 2d 54 2d App. Cal. P. 609, 508; People v. 72 Duncan, Cal. 2d P. 2d App. 247, 164 Taylor v. 313; 225 State, Pac. 988 (Okla. Crim. Vinzant App. v. 1924); 28 State, Ala. 180 So. App. People v. 41 220, 736; Kent, Misc. 83 191, N.Y.S. v. People 135 Cal. 67 948; Miller, 69, Pac. State 12; 19 N.J. 115 A. 2d Wise, 59, 62; Dennison v. 259 State, 66 State Ala. So. 2d 424, 552; 233 La. 96 Bailey, So. 2 2d Wharton’s Criminal 12th 34; Evidence, ed., § See A.L.R. 2d pp. 118-121; Annotation, 348. “Evidence tending to establish that confesser ill or in a hyster ical and therefore not in full condition, possession of his at the time he confessed faculties his does not affect guilt, admissibility but bears on the confession, weight * * *” and effect to given confession. Wharton’s Criminal 12th p. Evidence, ed., supra,
In the Blackburn the defendant case, supra, had a his- *13 A of mental disorders. medical tory report, introduced “recurrent periods that he had stated evidence, marked confusion and assaultiveness over-activity, by teeth severe grinding followed catatonic posturing, his complete concerning behavior, headache and amnesia to such at- subject threat to others when constitutes had that he Defendant there testified 201.) tacks.” (p. that he confession; of having signed no recollection or his by the sheriff being questioned not remember did in the state- anything not remember that and did deputy he did not commit the offense that ment took place; the court confession holding admissible, In charged. Dennison supra, from the as case, page quoted * “* * not the mere fact that accused was follows: confes- mental faculties when the of his full possession only not render it but inadmissible, sion was made would or by jury; to be accorded weight affected its the state- other evidence merely support provable voluntary.” not ment was fore- latter portion with the
It is in connection defendant have cited cases going quotation external there were influences, In those bearing. cases, inducement and fear such as in this case, present mental capacity lowered together with factors, other as constituting inadmissible confessions rendered coercion.” “psychological conten- rather novel also advances the
The by the presented no positive “There was tion: than other testi- was voluntary, the confession state offers of im- or threats, no force there was mony, no evidence put state of reward. hope or munity make the state- competence mental to defendant’s and threats, the sole issue that was though ments even raised the defense. never immunity were offer of force Revised 222-26 of the Laws that Section clear It the confessions proving the burden of places Hawaii 1955,
419 on the This burden never voluntary prosecution. met, was not even a by scintilla evidence.”
It not up prosecution anticipate negative every the defendant possibility phys or ically mentally or was competent legally incapable make a voluntary People statement. v. confession or 41 2d 258 Nail Cal. 2d v. Harrison, 216, 1016; P. State, 328 S.W. 2d Dreher (Ark. 836 Ct. v. Sup. 1959); State, 153 Tex. Crim. 220 S.W. 2d Hinson 170; v. 398, State, 152 Ga. 109 S.E. v. 106 Maynard State, Tex. 661; Crim. 293 The S.W. 1104. v. Paakaula and Cf., King 3 29 Haw. Haw. Kahauliko, 30; Territory Wong Pui, Fook Ah v. United 91 2d 441; Chang F. 805 States, (9th Cir. 1937).
The jury say had the last on the voluntary character of defendant’s and the administered. statements tests “In jurisdiction rule has been recognized although a court a may, upon hearing preliminary to the admission of a in confession determine that evidence, confession was freely voluntarily made where evidence is the ultimate determination of its conflicting, voluntary jury.” character for the and N Territory Young ozawa, And supra, p. question of whether the statements and the tests administered defendant of, to, were here given made left to understandingly the ultimate determination of the upon proper instructions. As to her cannot find written statement we therein any admis freely given by sions weren’t likewise her while on stand. We find no error in the witness admission of and the these results of the tests over statements the objec they involuntarily tion that were made or given. raised remaining question opening defendant’s Error 7 Assignment
brief No. is whether the trial give refusing requested erred judge instruction Territory’s requested in identical terms with Instruction withdrawn. No. which was error deals made assignment ruling
This with the a requested the trial if judge presented Territory’s requested identical with instruction terms Territory’s the same would be refused. Instruction No. 16, virtually Instruction No. 16 is verbatim requested quo- mental de- dealing tation of R.L.H. 249-4, 1955, § *15 It follows: rangement. provided that law of this you Territory “I instruct is the acting under mental any person that derangement, to discern the nature and rendering incompetent him by subject an done shall not be criminality of act him, that he therefor; provided, punishment however, though the same be done responsible therefor, shall be mental if such derangement person state of such heedlessly induced the mental derange- voluntarily ment intoxication.” by there three were other instruction, this requested
Besides insanity. These Territory’s were dealing with instructions Nos. Instruction Instructions No. 15,17 requested for a verdict of not provided guilty original form, in its 18, Nos. 15 and 17 insanity. Instructions were reason exclude a possible guilty 18 modified to not withdrawn insanity. reason of verdict instructions had to settle chambers The proceedings creating some confu- thus partially recorded, only were clearly indicate Territory’s They, however, sion. insanity on were withdrawn instructions on requested had stipulated defense counsel understanding in this case. a defense insanity was to have following transpired: show excerpts Partial Instruction No. Territory’s requested with connection In a special finding by requirement with dealing of the commission of the time insanity at on jury offense:
“The instruc- you doing your Court: What are on insanity?
tions Mr. There Fong: is some evidence. argu-
The You tell the in your Court: can ment.
Miss I’ll that. Buck: stipulate you Mr. Will Fong: (To stipulate Miss Buck) not a defense? insanity is Miss Buck: Yes.” Territory’s connection In-
Again, requested with struction legal insanity: No. defining
“Mr. Fong: Let’s ‘17’. pass this ‘mental Court: How about condition?’ Then getting insanity. Miss Buck: into we’re Mr. I Fong: will this Instruction withdraw ‘17’
since not an insanity is issue.” The defense dealing sanity instruction defendant was Defendant’s requested Instruction No. 9, *16 part in as provided follows:
“The burden as proof, those words are used in criminal upon is never the accused to cases, establish her or innocence to facts disprove necessary to establish the crime for which she was indicted. This burden is on the prosecution from the beginning to the end of the trial and applies every element neces- sary constitute the crime, including sanity of added.) (Emphasis Defendant." the record Again, shows defense counsel at that time did not feel that in sanity of the defendant issue:
“The Court: Defendant’s ‘9’?
Mr. Fong: sanity We’re about talking
defendant. Miss Buck: That was error. complete The Court: What that?
Miss Buck: The the first para- last sentence in just in. crept
graph, Fong: (To Buck) you Mr. Miss Are withdraw- ‘9’?
ing Defendant’s Miss Buck: It’s a more one. The defend- positive
ant have herself in- prove doesn’t nocent. ‘7’.
Mr. the Court’s number The Fong: That’s burden is never the defendant herself innocent. It all in- prove in the last cluded sentence. All right. Miss Buck: Withdrawn. ‘9’.” Court: Withdraw given Instruction No. as amended and
Territory’s as follows: agreement, provided “I you you may bring further instruct in, against under in this charge case, either verdicts the facts cir- following as given you in evidence under the law cumstances may these warrant: instructions 1. or Guilty as charged, 2. Guilty manslaughter, guilty. Not in must bring be unanimous.” you may verdict Any was the substance as Defend- This same instruction 16 which subsequently Instruction No. requested ant’s of verdicts furnished the forms Further, withdrawn. provid- three in number, were by counsel, jury, approved Territory’s In- covered for the same ing verdicts as amended. struction No. her affirmative answer to the
Defendant contends *17 not a insanity de- that you stipulate “Will question, insanity a always since defense “meaningless fense?” was by stipulation.” the land the law of change and one cannot use of semantics. The inten- hair-splitting merely This is was tion clear that case. only the reference was to this Defendant further denies that there a stipulation was that out insanity not in issue. She that when points she was asked if she is not stipulate insanity would an “I replied: issue she don’t I mean to say know. —I — will stipulate insanity they don’t know whether is a drunkenness defense which that.” And negatives again you stipulate insanity when asked “Will mental derangement are not a defense?” her reply “No.” It is unfortunate that all of discussion with regard Territory’s requested is not Instruction No. 16 fully set forth in the from transcript. what does However, in the appear is clear that in- record, requested struction was withdrawn after defense only counsel had given and the prosecutor court to understand that insanity not in issue as defense and after all other instructions relating to the of de- question sanity fendant had been settled. stated in As was Hogan * “* * 39 Haw. 586: Watkins, page That admis- * * *” as the sion, long stipulation is conclusive. stands, a stipulation inadvisedly made
However,
inadvertently,
or
be
improvidently
permitted
should
to be
withdrawn
court
inequity
when
will result
to one side and the
other
party
prejudiced thereby.
will
be
50 Am. Jur.
Supp., Stipulations,
14, p.
C.J.S.,
46;
Stipulations,
§
Trust
Exec.
34, p. 88; Cf., Cooke
Co.
et
Edwards,
al.,
§
“It very has held generally been the courts, large equitable they reason which have over powers their own the discretion vested in proceedings, them, may relieve against stipulations inadvertently, inadvisedly, improvidently entered into will operate inequi- tably and to the of one of the prejudice provided parties, may all the in the condition parties placed in which stipulation were before the was made.” 83 they C.J.S., *18 Stipulations, Annotation 35(3), p. 92; see extensive § in 161 A.L.R. Although therein used 1161,1180. civil matter, equally to criminal principle applicable actions.
The Territory’s withdrawal of requested Instruction No. 16 last instruction considered at prosecution on on hearing May the settlement of instructions 8, At following colloquy developed: that time the Territory’s
“The don’t you Court: want that? ‘16’— Mr. I will it. Fong: withdraw request Miss The defense, Buck: has then, make— n We’re you talking Mr. What are about? Fong: withdrawing it.
Miss The defense its objec- Buck: will withdraw to ‘16’ and—
tions Mr. You’re now? for Fong: asking this Miss Buck: Yes. ask
Mr. Then we’ll for all instructions on Fong: insanity. This Court: instruction is withdrawn —Ter- motion for a ‘16’—and the
ritory’s instruction denied. similar Exception.” Miss Buck: for In- request defendant’s upon It can seen that were asked insanity” No. “all instructions on struction Territory’s re- would include by for which Territory, Territory’s 15 and 17 Nos. as well Instructions quested instruc- the form of verdict Instruction No. original four one verdicts, among possible included, tion which insanity. defend- By implication reason of not guilty insanity for all request instructions; this joined ant request. request, Thus, trial court denied insanity her stipulation defendant withdrew in this case. not in issue or was a defense Can saywe that defendant prejudiced by the trial court’s refusal to heed her In request. other does words, the record disclose any evidence of insanity the part of defendant at the time of the hilling *19 could have considered.
In
emotional
Hawaii,
unassociated with a
insanity,
disease
defined
not an
brain,
is
excuse for
below,
a
In
crime.
order to constitute a defense under R.L.H.
249-4
(Territory’s
requested Instruction No.
§
16),
the mental derangement under which the defendant acted
at the time of the commission of
alleged
offense must
be caused
or
by
be the effect of a disease of the brain
rendering her
incompetent
to discern the nature
criminality of the act
by
done
her.
v.
Territory
Alcosiba,
In Territory Alcantara, Haw. this court ruled that there where some however evidence, weak and adduced the defendant an unsatisfactory, raising issue this issue should fact, be submitted to the jury by an appropriate instruction.
An examination of the record discloses that the defend- ant had adduced evidence from which the jury might have found her from suffering disease the brain rendering her at the time of the incapable, crime, knowing right from or the wrong nature and criminality of any act she may have There performed. was the testimony of de- fendant herself that she knew nothing events caused the death of her husband even she though almost certainly was the apartment at the time of the killing. In Dr. Kepner testified corroboration, based on that, his examination of the his belief that defendant, she did not have knowledge of the events of the shooting. Defendant also testified that she had had history “blackout” from spells early childhood down to a period shortly before the killing where she would perform acts *20 without knowing what she was at doing the and time, these “blackout” periods seemed recur more frequently and during year previous to the killing she had had several attacks. She stated that on about three occasions in a she “was coma for several weeks at that time” and in general more than a dizziness “[sometimes] knowing exactly and not I where was. Other I times, wouldn’t be of exactly conscious how long they had lasted.” She testified that she “felt couldn’t go on teaching [she] because I had had evidently these and blackouts,” she had had to leave school on occasions because of them. When asked these long how “blackouts” lasted she replied, sometimes it I would as would “Well, be, recall, several didn’t although hours” she “remember it was more than hours.” Alcosiba,
It the prosecution’s contention that controlling requires case is holding that there was insufficient evidence this case to warrant submission of to the insanity jury. issue We think, however, Alcosiba, decision are upon was based facts record not at all to the comparable presented facts Alcosiba, only single in this case. In case there was “a incident memory occurring of transient loss of at time of the criminal act.” held to support This was insufficient insanity plea. an been there was has Here, indicated, if testimony prove history tended which, accepted, mental prior confusion and manifestations of a dis- ordered mind. The factual distinction between the two Alcosiba, in- significant ruling cases makes applicable quite clearly this case as from the appears language of that 239: page decision,
“In order to justify submission of the defense of mental derangement there must there- jury, fore be some evidence or showing tending to show mental derangement caused or the effect of a disease brain.
“No such evidence produced. There was not the slightest an attempt prove impairment of the brain nor an abnormal condition of the mind nor any manifestation thereof.
“The record contains no tending to show the defendant was ever incoherent childish, or irrational in his ever unnatural or speech, abnormal queer his ever or abnormal actions, appear- his or ever had delusions or ance, fits, trances, hallucina- betrayed or ever a confusion of mind as to tions, time, or place displayed any ever other person, manifesta- * * *” *21 of a tions disordered mind. Dr. testified that Kepner whom defendant, he has had examined some dissociative trends as he stated think suffering “I that Mrs. Foster is from or at least dis- of a plays psychoneurotic reaction, including some or depression some anxiety, some tendencies to a certain emotional con- changing that conversion; is, * * * into or And also physical bodily symptoms. flicts dissociative that had a that personality some she trends”; that from apt person suffering was more a dissociate; things being fully dissociation could do without aware of “In if a they saying what were other dis- doing, words, due to a mental schiz- major sociation is illness such as and if the person or dementia while ophrenia praecox, dementia committed an praecox having schizophrenia a and subsequently developed forget- act and dissociation then considered might mentally that well be person fulness, from really knowing right wrong and therefore not sick devel- though at the time of the even amnesia offense, and to a ques- after the dissociation” answer oped also, a condition major illness was precedent, tion whether * * “* I in minor it is sometimes even true, think, that do render may one have conditions disorders, from and discriminating right wrong incapable person and an accurately coming up a situation weighing and to the defend- again referring judgment” accurate certainly would be less awareness, apprecia- “there ant, in one of the understanding person and if were tion, alleged alleged time of the during states dissociated the defendant did not know his offense”; opinion, that, night in the apartment shooting what went was not aware of quite possibly time night have may performed acts she them. performing she directed towards evidence, primarily defendant’s of her and sub- the voluntariness statements
the issue of an also raised issue of the the nitrate tests, mission to error of the trial court to insanity and was of her fact under requested issue to the refuse to submit nor for this was it for the court, It is not instructions. weight credibility of the to determine the trial court, *22 the and jury but for on the issue of her sanity, thought It the jury appears prosecution the alone. instructions requested so at the trial as evidenced its insanity. question on the could have resulted prejudice
No whatsoever and the the Territory by stipulation the withdrawal of resulted to the and disadvantage prejudice most serious the defense of refusal of her right insanity. judgment
For the reasons last sentence stated, granted. and a trial must be set aside new the reversal of the concurring opinion predicates In- Requested on the of Prosecution’s judgment giving instructed in the By struction No. 6. was it, of R.L.H. that malice shall be language 1955, 291-2, § of the act another and that proof killing on presumed such overcoming presumption upon burden the accused. p.
In 37 Haw. Territory Cutad, “the pointed provisions out that statute are not case of murder and care every should be applicable use” and, exercised its that where the further, pre an instruction sumption properly applicable, reciting statute should be accompanied by supplemental in word construing “presumed” and the word structions, “burden.” No instructions of that nature were given this case. the instruction was
Although given objection over the of the trial exception defendant, court’s ruling assigned neither as error nor properly pursued by in her briefs or in oral appellant argument in this There also a question court. whether serious for an instruction request defendant’s embodying the statutory presumption (Defendant’s Requested Instruc- constituted a error No. waiver of 17) tion based on No. 6. giving of the Instruction prosecution’s Under the circumstances related and view *23 do of the court disposition majority made of this case, point deal necessary proper not deem with of the Cutad beyond case, the admonition reaffirming to assume that done we be able supra. Having should this, again on retrial of the admonition will this case disregarded. for a trial. and remanded new
Reversed Axel for in error. plaintiff Ornelles Prosecuting Attorney, Arthur S. K. Assistant Fong, in error. for defendant LEWIS, OPINION OF J.
CO NCURRING but a different of on reversal, I concur the order in the giving In there error my plain view was ground. and ex- 6 objection Instruction No. over of Prosecution’s should notice this defects we Despite procedural ception. here. present the circumstances error under considered the court May the afternoon of 7, 1959, On by prose- instructions submitted requested nineteen At that time the defense. and sixteen cution, submitted 8 over granted Nos. 6 and were Requests Prosecution’s setting is a note out opinion to this objection. Appended in this mentioned charge opinion, of the the portions thereto. pertaining record together adjourned instructions of was of settlement The matter defense evi- time the at which May of morning 8, No. since to Prosecution’s 6, objection renewed dently request the prosecution’s the instruction giving in the minutes. appears again objection over No. defense offered 17, its thereafter Immediately 8May time on and con- the first for presented the first repeated of which paragraphs, two sisted modified the As so 6 and was stricken. No. Prosecution’s
431
second
The retained
given by agreement.
instruction was
note.
the appended
paragraph
quoted
far as to
go
error did not
so
This
to cure an
attempt
277
This is not such a Haw. in which the at the instance charged, *24 attorney pro- that plaintiff’s rightfully of defendant, question the on it jurors very which, appeal, to pounded entry caused the of a mistrial asserted should have was Previously the of the trial. the had been inception jury disregard to and defendant instructed was question, to unable to jury not in a was dis- position urge thereafter chose to regard bring them. before case resemble 42 present Fong,
Nor Glover v. does in which it was found defendant had Haw. 560, 567, certain additional giving instructions stipulated jury. asked Nor does it response questions in & Co. v. 115 Va. 80 Phillip Davis, S.E. Levy 814, resemble request cited in in at the Fong, which, Glover v. 791, supra, agreement an charged of plaintiff-seller buyer illegal and for an use between seller be a defense to con- contract, sold would property held estopped question being this sequently rule, in an different terms previously excuse that instruction no by plaintiff been refused. requested had 432
Without departure from the rule well stated Glover v. that: Fong, supra,
“A may party not, error appeal, question any of the trial court brought about his invitation, except as to errors that are jurisdictional.” we may review Prosecution’s 6. No.
This leaves for consideration procedural defects which did not invite error the court below but do raise the question may whether we review Prosecution’s No. 6.
Rule court 3(b)(4) requires specification of errors relied and when the error is the upon, alleged charge court, specification required to out set referred to totidem part together with the verbis, objec- tions at the urged trial. There no specification relat- ing to No. 6. Prosecution’s
An exception specified deemed abandoned. v. 43 Territory Pierce, Haw. den. 43 Haw. 246, 249, reh’g v. 287; 37 Haw. v. Territory Santana, Territory 586; 37 164 Haw. aff’d F. 2d v. Meyer, 102, 845; Territory 35 Warren, Haw. aff’d 119 F. 2d see also 232, 241, 936; Haw. Territory Martin, v. 39 110. 100, However, prior the court waived the rule on occasion. Territory Meyer 33 Territory Haw. Lawson v. Taok, Lawson, 560; Haw. Cabrinha v. Hilo 528; Tribune Haw. Herald, 355, Furtado v. 33 Haw. v. Hono 360; Rezents, 569; Territory Rapid lulu 23 Haw. v. Trent Transit, 391; Looney Trust 23 Haw. Co.,
Some courts state their rules that errors not specified *25 will be “save as the at its disregarded court, may option, or plain assigned notice a error not specified,” quote an the rule in Sibbach Wilson & example applied Co., 312 U.S. 16. We have not of had, prior adoption Rule Procedure, the new Hawaii Rules of Criminal 52(b), noticing of error.” concerning “plain provision not the present new rules are since involved, appeal
433 a It judgment is from entered is prior July 1, of worthy that under 30 of the note, Rule Hawaii however, of Rules Criminal Rule of as under Procedure, of Hawaii Rules Civil counsel has the Procedure, respon- sibility of objecting to the instructions agreeing upon thereof. notably settlement These are different rules from their federal counterparts.
Even without a rule on the we subject, could, case this follow the of at our should, practice noticing, a error plain though specified. not We option, possess Rule power waive it 3(b) just prior as was waived (4), Territory Meyer. While would a mistake grave to return to the indulgence shown before a waiver Meyer, is called for in this case.
Rule also should 3(b) (3) provides be noted. It ordinarily this court will not a consider point which is “set forth or necessarily suggested the state- of ment questions statement involved,” which a re- quired part of appellant’s brief. But fact rule “ordinarily” reads indicates that is not this a hard and fast rule.
Both of Rule paragraphs are for the 3(b) protection of court place and to on counsel responsibility of shaping the case. But it may happen that in considering raised —here point sufficiency of the evidence to sus- tain the verdict —this court upon comes a plain error affecting substantial preserved at the trial rights, but not brought before us under properly our rules. The giving Prosecution’s No. was such an error. It would assist than rather the court hinder to notice this error. Here case the jury could have found but did not find a reasonable doubt of the existence an essential malice, ingredient the crime of murder, second degree, which defendant was With- convicted. out malice defendant was guilty most manslaughter.
434 it
The unless jury the presume malice, was instructed to negatived by proof by adduced the defendant. in the not been instructed because jury should have so circum- by evidence adduced the there were prosecution doubt of stances which have raised a reasonable might minds the We can- jury. the of malice the existence not could have found that these say though jury the that, within doubt, circumstances raised reasonable find other- jury the to find and the did jury the province that find- If on the jury finding point, wise. the made to the jury ing weight given depended upon not to rebut the defendant should testimony defense what consider- upon to rebut without have been called out brought prosecution. ing circumstances inter- Hence the as to presumption instruction and the verdict jury’s fered with functions, matter. not deemed the end of the Morissette jury should giving United 342 276. The error v. U.S. 246, States, Knihal v. State, No. error.” “plain of Prosecution’s 6 was 256 2d United v. 109; Hines, 150 Neb. 36 N.W. States v. United 1958); Phelps States, F. 564 Cir. (2d 2d 561, 2d 49 (5th 1958). 252 F. Cir. 8 also No. refers Instruction
Prosecution’s There an objection of malice. statutory presumption and under R.L.H. but no exception, to that instruction No. 8. The statute the court can review 212-14, 1955, § to this applicable the court under the law binding on new adoption Rules prior law i.e., case, 38 Haw. Gomes, v. Territory Procedure. Criminal 44 Haw. State Pierce, supra; Yoshida, 308; Territory prej- No. 8 is near as Prosecution’s nowhere 81. However, No. 6. udicial as in the words the statute, No. was
Prosecution’s reads: 1955, 291-2, R.L.H. § malice killing another proved, the act of “When *27 shall shall aforethought be the burden presumed, the to party rest committed the show upon killing who that it extenua- justification did not or a exist, legal tion therefor.” 2 Act provision by section of the
This was enacted of June S.L.H. 15. The takes p. statute 30, 1860, 1860, its the meaning from common See v. Territory law. Scully, 22 Haw. 618,
In 37 the sounded Territory Haw. court Cutad, 182, an emphatic the use warning against indiscriminate of an instruction in the words of the statute. Though finding it unnecessary to pass on the the court said: instruction, “* * * Oases are in conceivable provisions
of the statute are and that an applicable instruction provisions might its be if embodying appropriate ac- companied supplementary construing instructions ‘presumed’ the word and the word ‘burden.’ But the provisions of the statute are to applicable every case of murder and care should be exercised in its use. It would serve no useful purpose this time for us to our express upon subject views but enough is said 2 Criminal in McClain on Law, 332 and sections 333 and the cited on note page 300, page cases 3, to give note food for thought.” Haw. at (37 p. 188.)
Previously, Buick, Territory Haw. an 28, 57, instruction in the words of the statute was deemed inap- plicable and harmless when: “* * * there was no evidence in the case permitting jury that the
finding killing was without malice aforethought. Upon the evidence as it it stood, compulsory upon if believed de- jury, fendant did find that killing shooting, with malice and that aforethought the offense was murder. Under these of an circumstances, giving concerning
instruction the statutory presumption been prej- malice such cases could not have possibly udicial the defendant.”
At first killing being common law: “The fact been it to have founded proved, presumes malice, law unless the is “a rule contrary appears.” This evi the effect that if the and the homicide proved, neither mitigation dence adduced to establish it shows from nor malice will presumed proof justification, * * If *. the evidence adduced establish homicide; conflicting one inferences, the homicide two presents then it be and the other an absence malice, malice *28 of be decided as question comes a fact, jury, truth the real of the aspect of evidence is to which Mann 124 Ga. 53 S.E. an v. State, 760, 324, occurrence.” 29 4 Erwin v. Ohio St. State, N.S. 934; 186, notated L.R.A., note 3d Homicide, 94, p. 117, 5, 104, 191; Wharton, ed., § § 332 and 1 Criminal Law, pp. 142-143; McClain, §§ Moreland of the origin presumption, Speaking pp. on 11-12: Homicide, his work states in cases “The have occurred starting point seems In provocation. killing apparent sudden without subjective mind and being the state of such situations by an inter- except and undisclosed undiscoverable law inferred concealed pretation facts, writing in 1581, malice. Lambard, motive and previous malice [judges the law many . . times states: the] there- . . . and lurked within party, before outward suddenly and without show fore if one his weapon or offence present quarrel [draws] it have [judges] . . the law ., . . another . [kills] meditated within his own former malice, proceeded sight from kept secret however mind, [is] ” other men.’ evidence discloses prosecution’s when Accordingly,
437 circumstances from which the jury might provocation infer reducing the homicide to manslaughter though it might — not so infer —the should not he charged pre sumption unless coupled with a that the statement which proves killing may rebut 4 the presumption. Perm. Ed. Homicide, Warren, pp. notes 324, 22-28, 60-63, § p. 1 62-63; *29 the mitigating circumstances may be in found the
prosecution’s
see Mann v.
evidence,
State, supra; Whitfield
v.
209 Ga.
76
2d
State,
S.E.
804,
405; Commonwealth v.
247
Bedrosian,
Mass.
N.E.
State
573, 142
778;
v. Alexander,
30 S.C.
8 S.E.
Wallen
74,
440;
134 Va.
Commonwealth,
114 S.E.
773,
Scott v.
786;
Commonwealth,
In State v. 52 Idaho Copenbarger, 16 P. 2d 441, 383,
438 degree a conviction of murder in the second was reversed con- of the charge presumption because of a which failed to the correct embodied tradictory convey rule, in the in- clearly Idaho but not set forth the statute the position structions. as the state took There, here, to the conviction. was sufficient sustain presumption The court said: evi- is of exculpatory
“Where the case bare state’s of the no as to the question application there is dence, * * *. Attorney General. rule contended for “* * * state’s difficulty position is even of the presumption, it the benefit seeks (p. 385) extenuation.” though presented it rule the court said further: California Quoting the “* * * prosecution on the of the tends part If the proof to man- only homicide amounts to show * * * the de- no is on placed then burden slaughter, ** of *. mitigation, to circumstances prove fendant the circum- say to under do not mean that, “We exculpatory believe the required is jury stances, ** deprive effect of the rule is to only *. The matter of of the malice. presumption of the benefit the state * * * ” 387) (p. Cal. People Deloney, see rule, For California the court referred 2d 537, 2d P. is Idaho more statute, like the Code 1105, which, Penal burden shifting than since statute, our complete proof absence upon is conditioned the defendant that the crime tending show part prosecution court stated: However, manslaughter. that a jury held should repeatedly court has “This * * *. section language in the instructed not be **“* the words of the instructed in If the construing into be misled may alone, statute mitigation’ circumstances proving ‘burden *30 imposing upon the defendant the of persuasion burden believing into that mitigating do circumstances not exist unless the proves the existence of such circumstances the evidence.” preponderance See People also App. 43 Cal. 2d 110 P. 2d Carson, 2d Dist.). (D.O.A.
In present the from the case, prosecution’s own evi- dence the have jury might found circumstances. mitigating identified prosecution gun two showed bullets had been of which one fired, passed through front The evidence that door, striking hinge. deceased fired other shot this was least as that defend- good ant fired unless because it, discounted of the evidence that had deceased alcohol in his to enough blood render him unconscious. But might have rejected view that deceased was when other unconscious shot was Majoska fired. Dr. testified that a man with the alcoholic content in his blood that deceased had would be uncon- scious in of such cases, Furthermore, 90% 100%. testimony there no particular as to time at which deceased must rendered have been unconscious. He was and the piles two clothes found on the nude, first floor were not clearly identified as his though this could have been if they since a description were done, his, what he had been had been obtained from wearing defendant. If deceased went disrobed and returned upstairs, down- by the token he same could have remained stairs, conscious fired long through have the front enough shot door. The gun in a closet There was kept upstairs. nothing that defendant was before the upstairs show homicide It occurred. was established that defendant upstairs Only after homicide occurred. defendant could in the gun have returned the shelf closet. Her oral at the scene indicated that police statements she stood on a chair to reach the shelf in but were of no closet, *31 on the significance shedding light question particular The nitrate brought gun paraffin of the downstairs. who on indicated the of some nitrate substance presence test If brought both of deceased’s hands. deceased who was he it after suddenly the and gun appeared downstairs he supposed he had disrobed and was to have retired, defendant in fear. If a struggle have might put well the the front door through ensued which shot was during interval the two the five to seven-minute between fired, by the insufficient jury shots have been deemed might The could jury homicide from the provocation. divorce the yet the homicide no believed accident, believed have in a due to adequate provocation, that defendant, the control of beyond reason when state where she the shot. she fired fatal presuming in the of the statute,
The words charge the the burden of show- upon malice and placing circumstances without with- ing extenuating qualification, evi- prosecution’s consideration jury’s from the drew and surrounding concerning dence circumstances instruc- for that reason. The given been should have not have been of the should tion in the words statute in the Cali- for additional reason well stated given a supra. For even in of People Deloney, fornia case prosecution shows put the evidence case any show- the defendant without killing by an intentional the burden of so mitigating circumstances, of ing to the defendant, jury in fact still does shift proof the niceties of a shift- understand expected cannot be jury explanation. without proof of ing burden mitigating there were all the evidence whether find of upon thereof sufficient to raise or circumstances malice. to the existence doubt as reasonable as a charge whole, the evidence Considering not have con- could but jury I am view case of prosecution complete eluded that had second a matter of degree any finding murder as without law, other than that it was the de- upon part I on the fendant killed the deceased. would reverse who error in the Instruc- ground giving Prosecution’s exception. tion 6 over objection No.
Note opinion (Appended concurring Lewis, J.) *32 from the Excerpts charge to the jury: Pros. #6. “Under the of the Territory laws of Hawaii Settled May 7, when the act of another killing malice proved, ’59 over ob- shall be and the burden aforethought presumed, jection; upon shall rest who committed the party exception taken and that it killing show did not or a legal exist, error assigned justification or extenuation therefor. Deft’s. #17. “In this I further you instruct connection, Requested you that before can consider this presumption and Set- 8,May tled Territory must have upon all proven, ’59, as and beyond a reasonable doubt, modified, by agree- ment it the Defendant who killed the deceased. “Voluntary intoxication affords no excuse, Pros. #8. justification or extenuation of a crime commit- Settled May 7, ’59 ted under its influence. may be It, however, over ob- jection; a defense intent specific where is an essential excep- no tion of the crime In ingredient charged. such cases taken; error as- relevant the degree show of intox- signed ication was such accused could not have formed the intent. required Thus, if find the you instant to have case, intoxicated at the time of the been said offense, kill- justify intoxication will excuse or of Francis Cecil Foster. It ing may be used that the defendant merely may show not have intent for requisite had malicious the of-
fense of murder in the It degree. second will excuse the Defendant for the of- not, however, fense if such malice or if find you was present, the statutory of its presumption presence has not been rebutted.” EDMUND FRANCIS MADDEN MARY JANE MADDEN. No. 4090.
August 16, 1960.
J., Marumoto,
C.
Wirtz
Tsukiyama,
Cassidy,
JJ.
Lewis,
notes
Criminal
70,
332 and
McClain,
Law, §§
26
333;
Am.
307
Jur., Homicide,
40
536;
C.J.S.,
§§
41
Homicide,
23, 28;
C.J.S.,
State v.
Homicide,
357b;
§§
§
131
107
Iowa
N.W.
Turner
Hayden,
1,
929;
v.
16
State,
Tex. Cr. Rep. 378, 392; Hornsby v.
94
State,
Ala.
10
55,
So.
Anders v.
255
522, 526;
State,
Ala.
51 So. 2d.
319,
711;
State v.
Ann.
Trivas, 32 La.
36 Am.
1086,
Rep.
Green
293;
v.
124 Ga.
52 S.E.
State,
Darden v.
343,
431;
73 Ark.
State,
84
315,
v.
507;
S.W.
Gamblin