20 Haw. 229 | Haw. | 1910
OPINION OF THE COURT BY
This is a writ of error to the circuit court of the third circuit.
The plaintiffs in error, referred, to in this opinion as the defendants, were convicted of burglary in the second degree upon an indictment charging that at Niulii, district of North Kohala, in the County of Hawaii, on December 1, 1909, in the day time, they did unlawfully, feloniously and burglariously enter the room of one Ah Su with intent to commit larceny therein, and did then and there unlawfully and feloniously steal, take and carry away money and coin of the value of $1800, the property of Ah Su.
The court sentenced the defendants to imprisonment at 'hard labor for a period not exceeding ten years and not less than five years.
The assignments of error now relied upon, all others having been abandoned, are: that the evidence does not sustain the charge, and is not sufficient to sustain the conviction; that the court erred in expressing, in the presence of the jury, the opinion that the testimony of the witness, Sam Kaluna, was material; that the court erred in commenting upon the testimony of the witness Kahai Mersberg.
1. The case is one of circumstantial evidence, there being evidence from-which the jury could find the following facts: That the defendant, Pong Chong, occupied a room in Ah Su’s building as a tailor shop; that he also had a bed in the storeroom in the same building where he slept; that Ah 'Su’s bedroom was in the rear of the storeroom, from which it was separated by a partition about nine feet high, there being an open
The theory of the Territory seems to be that the defendants having conspired to steal Ah Su’s money Pong Chong accordingly entered the room, broke open the trunk, obtained the bag containing the $1800, opened the window and passed it out to Chong Duck, who was standing at the rear of the room near the window for the purpose of receiving it..
Erom a careful reading and consideration of the evidence we are of "the opinion that, if the jury believed the witnesses for the Territory, and that tire jury did so believe must be conceded, the verdict cannot be set aside. We cannot say that the evidence does not sustain the verdict. Erom the facts
It must be conceded that the jurors who tried the ease, heard the witnesses testify, observed their demeanor, their intelligence, their appearance, their bias or prejudice, if any, and many other indicia, were in a better position to determine the truth than we are with only the cold record before us.
2. The defendants during the trial of the case having moved that certain evidence of the witness Sam Kaluna be stricken out, the court said, “The court is always very reluctant to pass upon a matter which is material 'and matter of fact and which should be passed upon by the jury. It is my opinion that the jury sitting in this case should decide the point which is now presented for- decision, and of course they will have an opportunity to consider it later on if this motion is not granted and the evidence remains in. The motion to strike is denied.”
The defandants contend that the court erred “in expressing in the presence of the jury,- the opinion that the evidence was material.” We are clearly of the opinion that the court did not err. It is not only within the exclusive province of the court, but it is the plain and positive duty of the court to pass upon the admissibility of 'all evidence offered — to say what is material and what is not material. The weight and credibility of the evidence of course is for the jury.
3. The Territory having rested the defendants moved that the evidence of Kahai Mersberg be stricken on the ground that it “is incompetent, irrelevant, immaterial and in no way tends to show the guilt of the defendants.” The court, in ruling upon this motion, said: “As a crime may be proven by circumstantial evidence, so every essential element of the crime may
The defendants contend that the court in its remarks, as quoted, commented upon the evidence to their prejudice. We do not so view the language of the court.
It is clearly apparent that the court, in its remarks and ruling upon this motion, only had in mind tbe question which the motion itself presented, namely, was the evidence competent, relevant and material? And, in denying the motion the court, in effect, answered the question thus presented in the 'affirmative, i. e., the evidence was competent, relevant and material. The court in its ruling did not invade the province of the jury. The evidence was material and having been properly received the court correctly declined to withdraw it from the jury. And the jurors being reasonable men and at least of ordinary intelligence, as we are bound to assume they were, they must have understood and accepted the remarks and ruling of the court in the sense which is so apparent.
The judgment of the circuit court is affirmed.