27 Haw. 177 | Haw. | 1923
Defendant was convicted upon a charge of receiving stolen goods, the goods alleged to have been stolen being fifteen automobile tires owned by the government of the United States. The case comes here upon exceptions which set forth that the trial court erred in sundry rulings with regard to the admission.of evidence; in refusing to direct the jury to acquit defendant; in giving an alleged erroneous instruction; in denying defendant’s motion in arrest of judgment; in denying defendant’s motion for a new trial; and in denying defendant’s amended motion for a new trial.
Exceptions 12, 13 and 14 are that the court erred in permitting the witness Hamlett to testify on behalf of the prosecution that the tires that were transferred to his truck and which he brought to Honolulu and delivered to defendant were taken from the government without right; and in permitting this witness to testify that in his opinion the tires were taken from the United States government without right because Sergeants King and Bramell knew they were government property.
The uncontradicted evidence showed that the United States government owned a large number of automobile tires and that on or about July 18, 1922, fifteen of these tires were stolen from the warehouse in which they were stored at Schofield Barracks, loaded onto a truck driven by the witness Hamlett, taken by him to Honolulu and delivered to defendant. Such being the case, the testimony of Hamlett that, in his opinion, the articles stolen were taken from the government without right was, at the
Exception 15 is that the court erred in admitting in evidence fifteen tires over the objection of the defendant on the ground that there was no evidence showing that these tires were those that had been testified to as having been taken from the warehouse at Schofield. The evidence shows that Hamlett, a witness for the prosecution, and the defendant were ex-soldiers, who had known each other while in the army. Prior to July 19, 1922, Hamlett and defendant had either one or more conversations concerning the sale of automobile tires, which Hamlett told defendant were to come from Schofield. According to Hamlett, he asked defendant if he could “handle” these tires. Several sizes of tires were mentioned and defendant told Hamlett that he could not use certain sizes but that he could use tires of one size. At this conversation, no definite arrangements were made but Hamlett testified that “it was later arranged between Mr. Witt and myself that he could handle some 35x5, he didn’t know how many, there was no definite amount mentioned.” Hamlett further testified that it was arranged between himself and defendant that, upon a sale of the tires, defendant was to retain all he might get in excess of $25 per tire and that $25 per tire was to be divided equally between the witness and Sergeant King. The retail price for Goodyear tires in Honolulu at that time was $49.50 and the wholesale price $35.14. Following this arrangement defendant borrowed a Ford truck and turned it over to the witness Hamlett who went to Schofield from whence he returned on or about July 19, 1922, with fifteen 35x5 tires which he delivered at the home of defendant on Young street in this city. Nine tires of this size were found by the police at defendant’s residence, the defendant at that time saying that he had bought them from Hamlett for $30 each
Exceptions 7, 8 and 17 are to the trial court’s permitting Major Ritchie to testify that the prosecution’s witness, Hamlett, had previously made a certain statement inconsistent with his testimony at the trial.
Thereafter, Major Ritchie was called to the stand and, over the objection of defendant, permitted to testify that at the place and time and in the presence of the parties mentioned, the witness Hamlett had stated that defendant was to dispose of the tires for whatever sum he could obtain, but that everything he received over $25 defendant was to get; up to $25 it was to be divided equally between defendant, Hamlett and Sergeant King. The objection urged in the trial court by counsel for the defense to the admission of this evidence was that, under the statute in this Territory, before the prosecution could attempt to impeach its own witness, the witness must be asked “a specific question, didn’t you do so and so, or make statement so and so, that if the witness says ‘no’ he may then be impeached, they may then impeach their own witness, but where a witness said, as Hamlett did, ‘I don’t remember, but now these are the facts that I am testifying to now’ he cannot impeach him.” Section 2618, R. L. 1915, provides that “A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but may contradict him by other evidence, or (in case the witness shall in the opinion of the court * * * prove adverse), may by leave of such court or person prove that he has made at other times a statement inconsistent with his present testimony; but before such last mentioned proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he has made such statement.”
In Kwong Lee Wai v. Ching Shai, 11 Haw. 444, appel
Exception 20 is that the trial court erred in admitting in evidence a certain copy of a bill of sale written by the witness Hamlett. Captain McDuffie, chief of detectives of Honolulu, testified that, on the night of the arrest of defendant, he had a conversation with him in regard to the tires, in which defendant claimed that he had a bill of sale for the nine tires that had been found at his place. Defendant first said to McDuffie that he did not have the bill of sale with him, then he looked through his pockets and found and handed to McDuffie a paper dated July 19, 1922, purporting to be a bill of sale by Hamlett to defendant of nine tires for the sum of $30 each, signed by Robert D. Hamlett. Without objection by defendant the bill of sale was received in evidence as prosecution’s exhibit “E.” At the time of the conversation between McDuffiie and defendant concerning the purported bill of sale, Hamlett was in McDuffie’s office (the conversation between McDuffie and defendant having apparently been conducted in another room). Mc-Duffie testified that he immediately went to Hamlett and dictated to him the contents of the bill of sale which Hamlett copied upon a sheet of yellow paper. McDuffie then called defendant into his office and asked Hamlett in defendant’s presence whether he, Hamlett, had given defendant this bill of sale (referring to the original bill of sale, prosecution’s exhibit “E”). Hamlett answered that he had not. Counsel for the prosecution offered in evidence the copy of the bill of sale which Hamlett had copied. Counsel for the defense objected to its reception on the ground that “it is not proper testimony, no foundation laid as a reason for introducing it, it was written
The objection to the admissibility of the copy of the purported bill of sale on the ground that it was not written in the presence of the jury was without merit and was properly overruled for, if the copy was admissible for any purpose, the fact that it was made out of the presence of the jury was immaterial. Moreover any error, if such there was, in the admission of the copy of the bill of sale was subsequently cured by the testimony of the wife of defendant who testified for the defense that the original bill of sale was not written nor signed by Hamlett but by herself. According to Mrs. Witt her husband dictated to her over the telephone the bill of sale asking her to type the same. The typewriter not being at hand, Mrs. Witt wrote the document out in longhand and added the name of Hamlett at the end thereof. Mrs. Witt testified that the reason she wrote the name of Hamlett at the end of the bill of sale was that, had she typed it instead of writing it in longhand, she would have typed in Hamlett’s name and that he could have signed over the typed name; hence it was her idea that in writing the document out in longhand she should follow a similar course and write in Hamlett’s name thinking that he would affix his signature above the name already written in. The evidence of defendant’s own witness thus indicating that he is not claiming that the original bill of sale was in the handwriting of Hamlett, the admission of a copy written by Hamlett was harmless. Exception overruled.
Exception 22 is to the denial by the trial court of defendant’s motion for a directed verdict of acquittal. At the close of the case for the prosecution, defendant’s counsel filed a motion that the court direct the jury to
The motion for a directed verdict of acquittal was properly overruled for the indictment was in the language of the statute relating to the offense of receiving stolen goods and fully and sufficiently set forth the offense with which defendant was charged.
Exception 27 is to the denial of defendant’s amended motion for a new trial.
The record shows that the verdict of the jury was returned and entered on September 26, 1922. Thereafter, within the time allowed by statute, defendant filed a
In our opinion the so-called amended motion for a new trial should not have been entertained by the trial court. The trial court having by its denial of the original motion for a new trial disposed of that, there remained nothing before the court to amend and the so-called “amended motion” was in fact nothing more than a second motion for a new trial; and as that motion was not filed within the period allowed by law, it was ineffective. In Republic v. Saku Tokuji, 9 Haw. 548, 553, two months after the trial, defendant filed a second motion for a new trial based upon alleged newly discovered evidence. This court held that, as the motion had not been filed within ten days of the trial, the motion was properly overruled. In Briggs v. Mills, 4 Haw. 450, defendant excepted to the verdict and moved for a new trial on the ground that the damages were excessive. The verdict was rendered October 11 and the court adjourned on the 29th. On November 7, counsel for defendant filed affidavits alleging the existence of newly discovered evidence. Objection being made to their being entertained, as being too late, this court said, p. 451: “On this point we hold that either there should be a separate motion for a new trial made, if it is founded upon the discovery of new evidence, or it should be mentioned among the other grounds in the original motion. Reference to the motion on file
We have examined all of the remaining exceptions and find them to be without merit. The exceptions are overruled.