23 Haw. 133 | Haw. | 1916
OPINION OP THE COURT BY
The defendant was convicted upon an indictment under R. L. 1915, Sec. 4028, charging that on the 1st day of April, 1915, in the district of South Hilo, county of Hawaii, he did unlawfully use dynamite with intent to injure, destroy and damage a certain sugar mill, the property of the Onomea Sugar Company, and brings the case to this court upon exceptions. After the case was submitted counsel were asked to file briefs upon a point which had not been presented, namely, whether in a case of this kind it is incumbent upon the prosecution to allege and prove actual injury to property as a result of the unlawful use of the explosive. The indictment, it will be observed, alleged the unlawful use of dynamite with intent to injure the property, and the evidence adduced at the trial showed that there had been no explosion and that no actual damage had been done to the mill in question. Section 4028 provides that “Any person unlawfully using dynamite or other explosive chemical or substance for the purpose of inflicting bodily injury upon, or to terrify and frighten, any person, or to injure or destroy any property, or damage the same in any manner, shall be liable,” etc.
Counsel for the defendant contends that so far as this case is concerned it is as though the statute read “Any person unlawfully using dynamite to injure, destroy or damage
It is not necessary, in order to give the statute a proper meaning and operation, that the acts mentioned in it should be made unlawful by another statute. “A statute often speaks as plainly by inference, and by .means of the purpose which underlies the enactment, as in any other manner, and whenever it appears by necessary inference from what is expressed, that a given act or acts are opposed to the policy of the law, and will defeat its purpose, or the object had in view by the legislature, such acts should be held to be thereby prohibited.” U. S. v. O’Connor, 31 Fed. 449, 451. The words “unlawful” and “unlawfully,” where the context or object of a statute requires, may be given a restricted meaning and construed as having reference only to acts expressly prohibited by statute, but such restricted meaning is by no means a necessary one for those words are commonly used in a wider sense, as the equivalent of “without authority of law” or “not permitted by law,” and as inclusive of actionable violations of civil rights whether or not they be punishable criminally as well. State v. Tinkler, 72 Kan. 262; People v. Loveless, 84 N. Y. S. 1114; Com. v.
Under exceptions to the denial of a motion for a directed verdict of acquittal and to the verdict rendered counsel for the defendant contends that the corpus delicti was not proven by more than a scintilla of evidence. There was testimony from which the jury were authorized to find that at about six o’clock on the morning of April 1, 1915, at the mill of the Onomea Sugar Company, a bundle was found traveling on the cane carrier leading from the end of the flume by which cane is sent in from the fields and the crusher in the mill; that it was seen and taken out from
An exception was taken to a ruling made by the trial court by which Mr. Moir, the manager of the company, was permitted to testify to what was said in a conversation had between himself and the defendant, who is a Portuguese, on the day prior to the commission of the alleged offense. It appeared that the conversation was had in part directly in the English language and in part through an interpreter who spoke both the English and Portuguese languages. Mr. Moir testified that the defendant seemed to • understand what he, Moir, said to him, and there was other testimony tending to show that the defendant has some knowledge of English. The defendant himself gave his version of the conversation, and he did not claim to understand no English. The interpreter also testified as to the conversation. The three versions varied somewhat. A part, at least, of Moir’s statement as to the conversation was clearly admissible, and as the objection was a general one, interposed to his testifying to it at all, and there was no motion to strike any part of it, we cannot say error was committed. “As a rule objections to evidence, to be available on appeal, must point out the particular part of the evidence which is objected to. If any of the evidence was admissible, a general objection is not sufficient.” 3 C. J. 818.
Another exception was taken to the refusal of the court to give an instruction (No. 9) on behalf of the defendant to the effect that in a prosecution depending upon circumstantial evidence, in order that the accused may be convicted, the evidence must exclude every reasonable hypothesis of innocence. This point was correctly covered by
Another exception was taken,to the refusal of the court to give defendant’s requested instruction No. 10, as follows: “The jury are instructed that if they should find that the evidence fails to show sufficient motive to commit the crime charged, on the part of the accused, this is a circumstance in favor of his innocence. In this case, therefore, if the jury find upon careful examination of the evidence that it fails to show sufficient motive on the part of the accused to commit the crime charged against him, then this is a circumstance which the jury may consider in connection with all the other evidence in the case in making up their verdict.” Counsel for the prosecution contend that the instruction was properly refused because it was “argumentative,” and “an instruction upon a question of fact,” also that the subject of motive was sufficiently covered in the charge of the court. The only reference in the charge, however, to motive was that its existence was asserted on one side and denied on the other. We think the instruction was not argumentative, nor a comment upon the character, quality or strength of the evidence within the meaning of the statute. R. L. 1915, Sec. 2435. But we are of the opinion that the instruction, in the form requested, was incomplete and misleading, and was properly refused on that account. Evidence of motive or lack of motive for the commission of a crime is generally admissible on the trial of criminal cases and is a proper subject for consideration by the jury, though proof of motive forms no part of the burden devolving on the prosecution in making out a case. It being a proper matter for the jury to consider, it would seem to follow that an appropriately framed instruction on the point, if requested, ought to be given. In cases depending on circumstantial
Another exception relates to the ruling of the court in refusing to give defendant’s requested instruction No. 11, to the effect that a certain statement testified on rebuttal to having been made by the defendant after his arrest tending to show ill-will against Mr. Moir should be considered by the jury only as bearing on the credibility of the defendant as a witness and not generally on the question of his guilt or innocence. The defendant had admitted making the statement but denied that it had reference to Mr. Moir. The testimony went in without objection so that no question as to its non-admissibility on the ground of remoteness is presented. The testimony being before the jury under these circumstances we think its effect was not to be limited as stated in the refused instruction. “As the relevancy of the extrajudicial statement is dependent upon that of the mental state, the probative utterance may precede, accompany, or follow the principal fact, if any, which the mental state assists to characterize or explain. So long as the time of the declaration is not too remote to be relevant, a considerable interval will not be treated as fatal to admissibility.” 4 Chamberlayne, Ev., Sec. 2656. Aside from any question of admissibility, then, the testimony was of a character proper for consideration by the jury in connection with the other evidence tending to show motive.
The charge of the court to the jury covered the case fairly and correctly.
All the exceptions have been considered, and they are overruled.