Territory v. Goo Wan Hoy, 24 Haw. 721

Territory v. Goo Wan Hoy

24 Haw. 721 | Haw. | 1919

OPINION OP THE COURT BY

KEMP, J.

The defendant, Goo Wan Hoy, ivas indicted, tried and convicted of perjury alleged to have been committed while he was testifying in an equity proceeding pending before the Hon. C. W. Ashford, first judge of the circuit court of the first judicial circuit. The indictment contained two counts. The first count charged the defendant with hav*723ing sworn falsely that he saw W. G. Let sign a certain certificate offered in evidence in said canse and the second count charged him with having sworn falsely that Farm Cornn signed and affixed his notarial seal to a certain certificate offered in evidence in said cause and that he, the defendant, saw the said Farm Cornn so sign and affix his notarial seal to said certificate. There were suitable allegations as .to "the materiality of the alleged false testimony and tkti knowledge of its falsity on the part of the defendapdj the indictment setting forth fully the circumstampéí under Avhich the alleged false testimony was given./--'

In/ the course of the trial the defendant saved exceptions to various rulings and seventy-three of these exemptions Avere embodied in defendant’s bill of exceptions alloAved by the court. The defendant has abandoned many of his exceptions and has confined his argument to six propositions set forth in his brief and which we Avill examine.

His first complaint is that the court erred in permitting the Avitness Farm Cornn to testify as to signatures Ayritten by him in the office of E. W. Breckons expressly for use upon the trial of this case.

It appears that prior to the commencement of the trial the Avitness Farm Cornn Avas called to the office of E. W. Breckons AA'here he, in the presence of Mr. Breckons, Avrote his signature a number of times. At the trial and Avhile Farm Cornn Avas upon the stand as a Avitness in behalf of the prosecution, he Avas slioAvn the signatures written by him as above stated and Avas questioned concerning the making of said signatures and gaAre his ansAvers oaxu- the objection of defendant to the effect that he had Avritten said signatures about two Aveeks prior to the time of his examination as a Avitness and that he did so at the request of Mr. Breckons Avho told him the purpose for AA’liich the *724signatures were wanted. It does not appear from tlie exceptions nor from the transcript of the evidence that said signatures were exhibited to the jury or used by Mr. Breckons or other witnesses giving opinion evidence for the purpose of comparison with the alleged forged signature of Farm Cornn. On the contrary it appears from the evidence that when the signátures were offered in evidence the court refused to allow them to go to the jury and on motion of defendant struck the evidencíaos to the making of said signatures from the record and instituted the jury to 'disregard the same. Later the prosecution'Xjittempted to have the court reverse its' ruling as to the admission of said prepared signatures and to permit same to lk<e exhibited to the jury for comparison with the alleged forged signature of the witness but the court adhered to its fort; me ruling and refused to permit said signatures to go to the jury for any purpose.

Without expressing any opinion as to the admissibility of the prepared signatures, it being apparent from the record that they Avere not admitted in eAÚdence, Ave think the preliminary examination of the witness as to the writing of said signatures and the circumstances under Avhich they were written Avent no further than Avas necessary to ascertain whether or not the signatures Avere themselves admissible in evidence. Defendant’s Avhole argument is directed to the proposition that signatures written for the purpose of comparison may not be exhibited tO' the jury and that to do so constitutes error. With that question we are not concerned and express no opinion thereon. The court very properly permitted an examination and cross-examination of the witness Farm Cornn as to Achen, where and under what circumstances the proffered signatures Avere made for the purpose of passing upon the admissibility of said signatures in evidence.

Defendant’s second complaint is that the court erred *725in sustaining tlie objection of the prosecution to certain questions propounded by him to the wdtness W. G. Let AAdiile testifying as to his familiarity Avith the signature of Farm Cornn. When the Avitness W. G. Let Avas testifying counsel for the prosecution undertook to qualify him to give opinion eA-idence as to purported signatures of Farm Cornn. After the Avitness had testified upon direct examination that he Avas familiar Avith the signature of Farm Cornn, that he had knoAvn Farm Cornn for many years and had been familiar Avith his signature for more than ten years, having seen him Avrite it many thousands of times, he Avas sIioavii certain instruments by counsel for the Territory containing the name of Farm Cornn and asked Avhetlier in his opinion the name Avritten thereon Avas the signature of Farm Cornn. It Avas at this juncture that counsel for defendant objected to the Avitness giving his opinion and offered to sIioav that the witness could not lead or Avrite except his oavu name. He was given permission by the court to examine the Avitness before ruling upon the objection. After an examination of the Avitness by counsel for defendant, which developed that the Avitness claimed to read and write but very little; that he could not Avrite or read an ordinary letter and could not read the documents containing the name of Farm Cornn and as to the genuineness of Avhich he proposed to give his opinion, he Avas asked: “It is a fact, is it not, that you can’t either read or write English?” to which objection was made that it was incompetent, irrelevant and immaterial and not proper cross-examination. This objection was sustained and the court remarked that the examination should. be limited to his familiarity with the signature of Farm Cornn. It must be borne in mind that the object of the examination of the witness at this time was to determine whether or not he Avas competent to give his opinion as to the genuine*726ness of certain signatures and was not a general cross-examination of the witness upon his testimony. The whole question of the ability of the witness to read and write English is one that affected the weight of his evidence and not its competency or admissibility, and it was therefore not error for the court to sustain the objection.

The defendant next complains of the action of the court in sustaining the objection of counsel for the Territory to certain questions propounded to the witness John Grace by counsel for defendant and directed to impeaching the credibility of said witness. While the witness was under cross-examination by counsel for defendant he was asked the following questions: “So when .you testified in Judge Kemp’s court you committed perjury because Goo Wan Hoy had told you to, is that correct?” “In the case of Nawahie v. Goo Wan Hoy you again committed perjury, did you, in your statements concerning the issuance of the power of attorney, namely Exhibit E9?” Each of these questions was objected to as incompetent, irrelevant and immaterial. The objection was sustained and the Avitness not permitted to ansAver, to Avhich rulings the defendant duly excepted. Prior to asking the questions above set out the witness had been cross-examined at length concerning his evidence in the case of Nawahie v. Goo Wan Hoy, tried before Judge Kemp, and had stated that he gave certain testimony in that proceeding in regard to a deed and poAver of attorney from himself and wife to Goo Wan Hoy which was false and that “I testified so and it was not of my own volition. It was Avhat I Avas instructed by Ahoy.” Under these circumstances we cannot see how any an-SAver Avhich the witness might have given would be material to the issue or shed any further light upon the character or’ reliability of the witness.

It has always been found necessary to alloAV witnesses *727to be cross-examined not only npon tlie facts involved in tlie issue but also upon suck collateral matters as may enable tlie jury to appreciate their fairness and reliability. To this end a large latitude has been given where circumstances seemed to justify it, in allowing a full inquiry into the history of witnesses and into many other things tending to illustrate their true character. This may enable' the court or jury to comprehend just what sort of person they are called upon to believe and such a knowledge is often very desirable. It cannot be doubted that a previous criminal experience will depreciate the credit of a Avitness to a greater or less extent, in the judgment of all persons and there must be some means of reaching this history. The rules of evidence do not alloAv specific acts of misconduct or specific facts of a disgraceful or criminal character to be proved against a Avitness by others but it has been held by this court that a Avitness may be specially interrogated upon cross-examination in regard to any vicious or criminal act in his life and may be compelled to answer unless he claims his privilege. But the extent to which disparaging questions not relevant to the issue may be put on cross-examination is discretionary Avith the trial court and its rulings are not subject to review here unless it appears that the discretion Avas abused. Republic v. Luning, 11 Haw. 390. Certainly it cannot be said that the discretion Avas abused in the rulings complained of here as all the facts that could be gotten from this witness in regard to his testimony in the two proceedings about which he Avas asked Avere admitted and it was only when the questions calling for a conclusion based upon this testimony were asked for that the court called a'halt in the cross-examination.

A splendid discussion of the rules governing the impeachment of Avitnesses by cross-examination upon mat*728ters not relevant to the issue is to be found in Carroll v. State, 24 S. W. (Tex.) 100 and in Wilbur v. Flood, 16 Mich. 40, both of which cases are cited with approval in Republic v. Luning, supra.

The defendant also complains of the court’s refusal to give the following requested instruction: “I instruct you that an opinion as to the handwriting of individuals ought to be received with caution, and that direct evidence that an individual saw the persons write the documents in question, is entitled to greater weight than the expression of opinions of witnesses or experts as to the falsity of the handwriting.”

“In those jurisdictions in which the determination of the weight and credibility of the evidence is committed solely to the jury a charge whcli comments upon the weight or credibility of circumstantial evidence in comparison with direct evidence is improper as encroaching upon the province of the jury.” 12 Cyc. 597 (d). In this jurisdiction we have statutory provision prohibiting the judge from commenting upon the character, quality, strength, weakness or credibility of any evidence submitted. Sec. 2435 R. L. 1915. “It is error for the court to single out certain testimony in the case and to instruct the jury that this testimony is entitled to very great or little weight, or to otherwise instruct as to its weight.” 12 Cyc. 597 (c).

It seems to us that either under the general rule or under the statutory provision in force in this jurisdiction the charge was improper and no error was committed in refusing to give it.

The defendant’s next and final argument is based upon the court’s' action in permitting the defendant while a witness in his own behalf to be cross-examined as to whether or not he had committed crimes other than the one for which he was on trial.

*729The court permitted the defendant, over his objection, to be cross-examined as to whether he had forged the name of John Grace and Opiopio P. Grace to certain instruments involved in the same controversy out of which the perjury charge, upon which the defendant was being tried, grew and he now strenuously insists that this action of the court was not only prejudicial to the defendant but that it deprives him of his constitutional right to trial on indictment of a grand jury.

We have seen from an examination of this same question above that a witness may be thoroughly sifted upon cross-examination ' upon his character and antecedents and may, subject to the constitutional privilege to refuse to criminate himself, be compelled to disclose collateral facts which tend to criminate, disgrace and degrade him, if such other facts tend to weaken his credibility. That being so, unless a defendant is entitled to greater consideration in the matter of cross-examination upon collateral matters tending to impeach his credibility then this contention of defendant is without merit. “Where a defendant takes the witness stand in his own behalf he may on cross-examination be asked about any matter pertinent to the issues although he has not testified on direct examination as to all of the things about which he is asked.” Territory v. Hart, 24 Haw. 349. It is thus seen that the rule as to cross-examination of a defendant upon matters material to the issue, when testifying in his own behalf, is quite as liberal as in the case of other Avitnesses and Ave see no reason why a defendant who has voluntarily become a witness should not be subjected to the same cross-examination upon collateral matters affecting his credibility as other witnesses either in his behalf or against him.

“In criminal cases, it is a well established general rule that the prosecution may not introduce evidence of the *730character of the accused for the purpose of raising an inference that the latter is guilty of the crime for which he is being tried. * * * But where the accused takes the stand as a witness he waives his rights in this regard and his character may be impeached as that of any other witness.” Chamberlayne’s Hand Book on Evidence, Sec. 1029. See also Halloway v. People, 181 Ill. 544, 54 N. E. 1030, and Chamberlayne’s Modem Law of Evidence, Sec. 3276.

C. 8. Davis, Second Deputy City and County Attorney (A. M. Brown, City and County Attorney, and A. M. Cristy, First Deputy City and County Attorney, with him on the brief),-for the Territory. IP. B. Lymer for defendant.

When a witness is asked upon cross-examination if he did not commit a certain crime and gives an answer, the examining party is bound by the answer and cannot bring other evidence to contradict it (Republic v. Luning, supra). In the case at bar the defendant denied the commission of the crimes imputed to him in the questions objected to and no attempt was made to contradict him. No harm could have resulted from the allowance of the questions.

The exceptions are overruled.