24 Haw. 677 | Haw. | 1919
The defendant, Takeo Nishi, was tried and convicted in the Circuit Court of the first judicial circuit of the crime of rape and has now brought the cause to this court by bill of exceptions. Six assignments of error are specified, the first four having to do -with the instructions given by the trial judge to the jury, the fifth being to the verdict of the jury on the ground that it was contrary to the law and the evidence and the weight of the evidence, and the sixth being to the order overruling defendant’s motion for a new trial.
We will first consider the merits of the claim of the defendant that the verdict of the jury was contrary to the law and the evidence which is one of the grounds set up in the motion for a new trial. Counsel for the prosecution makes the point that because this question was not presented to the trial judge by proper motion for a directed verdict both at the close of the defendant’s case in chief and at the close of all the evidence the defendant has waived his right to now urge that the evidence is insufficient to sustain the conviction. While there may be some federal cases which prescribe this as the practice obtaining in those courts yet the rule has never prevailed in this Territory. If the verdict is so manifestly against the evidence as to induce the conviction that a mistake has been made or that injustice has been done or where it appears that the verdict is clearly, palpably, decidedly and strongly against the evidence or is manifestly the result of bias or of misunderstanding on the part of the jury the verdict should be set aside. See Bishop v. Kala, 7 Haw. 590; Hayselden v. Wahineaea, 9 Haw. 51, 56. And so long as that question was properly presented to the court below affording it an opportunity to pass thereon, which was done in this case by defendant’s motion for a new trial, the defendant may then have his exception to this court from the adverse ruling of the court.
A case bearing great similarity to the one at bar, although stronger upon the facts, is Brown v. State, 127 Wis. 193, where the same rule is adopted. Another leading case is People v. Dohring, 59 N. Y. 374. See also People v. Mayes, 66 Cal. 597.
Measured by these well established principles it is obvious that the evidence in this case falls far short of showing that degree of resistance which is required of the woman in order to sustain a conviction upon the charge of rape. Indeed the resistance upon the part of the prosecutrix, if in fact there was any, was of such an equivocal character as to suggest actual consent. There was no evidence whatsoever that the ability of the prosecuting witness to resist was overcome or even impaired by reason of unconsciousness, threats or exhaustion.
The trial court modified instruction No. 1, requested by the defendant, by striking from the instruction that portion which advised the jury that in order to convict they must find that the prosecuting witness “did everything she could under the circumstances to prevent the defendant from accomplishing his purpose. If she did not do that it is not rape.” Counsel for the prosecution endeavors to justify the refusal by the court to give this instruction because'“it is only in cases where the complaining witness is not so overcome with fear of great bodily harm from the threats or conduct of defendant that defendant must find that she resisted to the utmost,” etc. We think
Defendant’s exception No. 2 goes to the modification by the court of defendant’s instruction No. 7. We find no error in this as the subject was covered by other instructions.
Defendant’s exception No. 4 challenges the correctness of the prosecution’s instruction No. 3 as given by the court as follows: “If you are satisfied in this case beyond a reasonable doubt that the victim of this alleged crime, Shigeko Murata, made prompt and early complaint of the wrong and injury committed by this defendant upon her person and to her character and chastity, such evidence may be received and considered by you as corroborative of the other testimony given by her in this case.” This instruction should not have been given for various reasons. First, it is objectionable because it assumes as a fact that defendant committed a wrong and injury upon the person of the prosecutrix; second, because no complaint of the alleged assault was made by the prosecuting witness, and finally and independently of the other reasons, even had a complaint been made by the prosecuting witness, the instruction is an incorrect statement of the rules governing the effect and purpose of such a complaint. Section 3903 R. L. 1915 reads as follows: “The female upon whom rape is alleged to have been committed, or who is alleged to have been abducted or seduced, is a competent witness in a prosecution for such rape, abduction or seduction; but no person shall be convicted of rape, seduction or abduction, upon the mere testimony of such female uncorroborated by other evidence
The defendant’s exceptions are sustained to the end that a new trial may be had and it is so ordered.