Defendant was convicted by the court below of the crime of assault and battery with intent to disfigure another and sentenced to a term not to exceed the maximum period of ten years at Oahu Prison.
The assignment of errors relied upon challenges the sufficiency of the evidence to support the verdict of guilty, and alleges error (1) in the refusal to permit cross examination of a government witness concerning his drinking and habitual intemperance, both before and during the commission of the offense; (2) in admitting in evidence certain photographs and clothing; (3) in admitting in evidence testimony relating to the comparison of hair; (4) in admitting in evidence testimony of an alleged conversation between a police officer and the defendant on the theory that it was part of the res gestae; and (5) in denying a motion for acquittal and in finding the defendant guilt as charged.
It is an elementary rule of law that a witness may be interrogated, upon cross examination, in regard to any vicious or criminal act of his life, and may be compelled to answer unless he claims his constitutional privilege not to do so. The extent to which disparaging questions, not relevant to the issue, may be put on cross examination is discretionary with the trial court and will not be disturbed unless it appears that the discretion was abused. (Republic of Hawaii v. Luning,
It is also elementary that a witness may be asked on cross examination about his use of intoxicating liquor since it may directly affect his knowledge and memory of what occurred.
It is fundamental to every trial that a witness must be placed on a proper setting and the weight of his testimony *Page 637 and his credibility must be tested in order to give the trier of the facts a fair opportunity to appraise the facts to which the witness testifies and to ascertain his relationship to the parties and the subject of litigation. What such proper setting and what weight must be given to the testimony is within the discretion of the trial court. The court below allowed cross examination of the witness as to his use of intoxicating liquor and as to whether he had ever been arrested and convicted for drunkenness. The court below, however, refused continued questioning on this matter. Such refusal is assigned as error.
Abuse of discretion arises when a party is denied the right to place the witness in the setting of the case, i.e., denied the right to test his interest, motive, inclination, prejudice, means of obtaining a correct and certain knowledge of the facts in his testimony, the manner in which he used that means and his power of discernment, memory and description. How far a party will be allowed to proceed is not a question to be reviewed here. It is within the reasonable judgment of the trial judge to determine when the subject has been exhausted. To do otherwise would commit this court to retry all cases contested below.
The second assignment of error in admitting in evidence certain photographs and clothing dealing with location of injury and identity of the victim and place in which the injury occurred is without merit. (Territory v. Joaquin,
The third assignment of error relates to the admission of testimony relating to the comparison of hair. Defendant contended that the witness, testifying as to comparison of the hair of the victim with hair found on a shoe allegedly belonging to the defendant, was not qualified as an expert witness. After preliminary examination by both parties as to the qualifications of the witness, the judge below stated that the witness was qualified, but added that the *Page 638 extent of his qualifications would "obviously go to the weight of the testimony."
In Kamahalo v. Coelho,
Whether or not a witness qualifies as an expert is a preliminary question for the trial court and rests largely within the discretion of the trial judge. The reason underlying this rule of law stems from the fact that the testimony of a so-called expert witness is to assist either the jury or the court, or both, in understanding the basis of a statement of facts which require a greater knowledge, experience or study than is usually possessed by the ordinary layman. That this matter should rest largely within the discretion of the trial judge below is sound law, for the testimony was to assist the judge below in arriving at a conclusion as to the comparison of the hair. The judge below clearly indicated that the extent of the qualifications of the so-called expert witness who testified below would go to the weight of his testimony. There being ample evidence, however, to sustain the verdict below, in addition to such testimony, we find the third assignment of error without merit.
The fourth assignment of error relates to the admission of testimony of a conversation between a police officer and of the defendant on the theory that it was part of the res gestae. The testimony discloses that between the hours of 8:00 and 8:30 p.m. of November 5, 1949, and 4:30 or 4:35 a.m. of November 6, 1949, the defendant argued with and struck the victim at intervals varying from thirty minutes to one and one-half hours. The striking lasted about two to three minutes each. The conversation between the police officer and the defendant took place at the apartment *Page 639 at or immediately after the police officer gained entry. At that time, the defendant, according to the testimony of the police officer, was still under the influence of liquor, sitting just beyond the entrance to a kitchen. The pertinent statement admitted by the court below as part of the res gestae is as follows: "I asked him how come she was in the condition that she was, and he said he only gave her a couple of one-twos, and he made his fist in a swinging manner. He said, `I also gave her a couple of these.' He was standing — I mean sitting in the chair — and he said he gave her a couple of these. He said, `Nobody will want to look at her after this.' That was all. I told him immediately then that he was under arrest."
In St. Clair v. United States,
In Solice v. State,
Fundamentally, the sound rule is that, in order for statements to be admitted as part of the res gestae, the statements must be reasonably contemporaneous with the event to which they relate, i.e., they must be such as to have been proximately caused by the exciting influence of the event without opportunity for deliberation or influence. (Territory v. Kinoshita,
We find that the fifth assignment of error does not warrant discussion.
The judgment and sentence below are affirmed. *Page 641