State v. Foster

CONCURRING OPINION OF

LEWIS, J.

I concur in the order of reversal, but on a different ground. In my view there was plain error in the giving of Prosecution’s Instruction No. 6 over objection and exception. Despite procedural defects we should notice this error under the circumstances present here.

On the afternoon of May 7, 1959, the court considered nineteen requested instructions submitted by the prosecution, and sixteen submitted by the defense. At that time Prosecution’s Requests Nos. 6 and 8 were granted over objection. Appended to this opinion is a note setting out the portions of the charge mentioned in this opinion, together with the record pertaining thereto.

The matter of settlement of instructions was adjourned to the morning of May 8, at which time the defense evidently renewed the objection to Prosecution’s No. 6, since the giving of the instruction at the prosecution’s request over objection of defendant again appears in the minutes. Immediately thereafter the defense offered its No. 17, which was presented for the first time on May 8 and consisted of two paragraphs, of which the first repeated Prosecution’s No. 6 and was stricken. As so modified the *431 instruction was given by agreement. The retained second paragraph is quoted in the appended note.

This attempt to cure an error did not go so far as to waive the error. See Crosby v. State, 169 Ark. 1058 , 277 S.W. 523 ; People v. McGrath, 94 Cal. App. 520 , 271 Pac. 549 (D.C.A. 1st Dist.). In view of the renewal of the objection to Prosecution’s No. 6 the court could not have supposed that the first paragraph of Defendant’s No. 17 was offered by defendant or agreed to, the evident purpose being to offer the second paragraph to follow immediately after Prosecution’s No. 6, as was done. There were court’s instructions on reasonable doubt, and the addition was without significance.

This is not such a case as Mossman v. Sherman, 34 Haw. 477 , in which the jury was charged, at the instance of defendant, that plaintiff’s attorney rightfully propounded to jurors the very question which, on appeal, it was asserted should have caused the entry of a mistrial at the inception of the trial. Previously the jury had been instructed to disregard the question, and defendant was not in a position to urge that the jury was unable to disregard that which defendant thereafter chose to bring before them.

Nor does the present case resemble Glover v. Fong, 42 Haw. 560, 567 , in which it was found that defendant had stipulated to the giving of certain additional instructions in response to questions asked by the jury. Nor does it resemble Phillip Levy & Co. v. Davis, 115 Va. 814 , 80 S.E. 791 , cited in Glover v. Fong, supra, in which, at the request of plaintiff-seller the jury was charged that an agreement between the seller and buyer for an illegal use of the property sold would be a defense to the contract, and consequently was held estopped to question this rule, it being no excuse that an instruction in different terms previously had been requested by plaintiff and refused.

*432 Without departure from the rule well stated in Glover v. Fong, supra, that:

“A party may not, on appeal, question any error of the trial court brought about by his invitation, except as to errors that are jurisdictional.”

we may review Prosecution’s No. 6.

This leaves for consideration procedural defects which did not invite error in the court below but do raise the question whether we may review Prosecution’s No. 6.

Rule 3(b)(4) of this court requires a specification of errors relied upon, and when the error alleged is the charge of the court, the specification is required to set out the part referred to totidem verbis, together with the objections urged at the trial. There was no specification relating to Prosecution’s No. 6.

An exception not specified is deemed abandoned. Territory v. Pierce, 43 Haw. 246, 249 , reh’g den. 43 Haw. 287 ; Territory v. Santana, 37 Haw. 586 ; Territory v. Meyer, 37 Haw. 102 , aff’d 164 F. 2d 845 ; Territory v. Warren, 35 Haw. 232, 241 , aff’d 119 F. 2d 936 ; see also Territory v. Martin, 39 Haw. 100, 110 . However, prior to Territory v. Meyer the court waived the rule on occasion. Territory v. Taok, 33 Haw. 560 ; Lawson v. Lawson, 36 Haw. 528 ; Cabrinha v. Hilo Tribune Herald, 36 Haw. 355, 360 ; Furtado v. Rezents, 33 Haw. 569 ; Territory v. Honolulu Rapid Transit, 23 Haw. 387, 391 ; Looney v. Trent Trust Co., 23 Haw. 208, 212 .

Some courts state in their rules that errors not specified will be disregarded “save as the court, at its option, may notice a plain error not assigned or specified,” to quote as an example the rule applied in Sibbach v. Wilson & Co., 312 U.S. 1, 16 . We have not had, prior to the adoption of the new Hawaii Rules of Criminal Procedure, Rule 52(b), any provision concerning the noticing of “plain error.” The new rules are not involved, since the present appeal *433 is from a judgment entered prior to July 1, 1960. It is worthy of note, however, that under Rule 30 of the Hawaii Rules of Criminal Procedure, as under Rule 51 of the Hawaii Rules of Civil Procedure, counsel has the responsibility of objecting or agreeing to the instructions upon the settlement thereof. These rules are notably different from their federal counterparts.

Even without a rule on the subject, we could, and in this case should, follow the practice of noticing, at our option, a plain error though not specified. We possess the power to waive Rule 3(b) (4), just as it was waived prior to Territory v. Meyer. While it would be a grave mistake to return to the indulgence shown before Meyer, a waiver is called for in this case.

Rule 3(b) (3) also should be noted. It provides that ordinarily this court will not consider a point which is not “set forth in or necessarily suggested by the statement of questions involved,” which statement is a required part of appellant’s brief. But the fact that the rule reads “ordinarily” indicates that this is not a hard and fast rule.

Both paragraphs of Rule 3(b) are for the protection of this court and to place on counsel the responsibility of shaping the case. But it may happen that in considering a point raised — here the sufficiency of the evidence to sustain the verdict — this court comes upon a plain error affecting substantial rights, preserved at the trial but not properly brought before us under our rules. The giving of Prosecution’s No. 6 was such an error.

It would assist rather than hinder the court to notice this error. Here is a case in which the jury could have found but did not find a reasonable doubt of the existence of malice, an essential ingredient of the crime of murder, second degree, of which defendant was convicted. Without malice defendant was at most guilty of manslaughter. *434 The jury was instructed to presume the malice, unless it was negatived by proof adduced by the defendant. The jury should not have been so instructed because in the evidence adduced by the prosecution there were circumstances which might have raised a reasonable doubt of the existence of malice in the minds of the jury. We cannot say that, though the jury could have found that these circumstances raised a reasonable doubt, it was within the province of the jury to find and the jury did find otherwise. If the jury made any finding on the point, that finding depended upon the weight given by the jury to the defense testimony to rebut what the defendant should not have been called upon to rebut without the jury considering the circumstances brought out by the prosecution.

Hence the instruction as to the presumption interfered with the jury’s functions, and the verdict of the jury should not be deemed the end of the matter. Morissette v. United States, 342 U.S. 246, 276 . The error in the giving of Prosecution’s No. 6 was “plain error.” Knihal v. State, 150 Neb. 771 , 36 N.W. 2d 109 ; United States v. Hines, 256 F. 2d 561, 564 (2d Cir. 1958); Phelps v. United States, 252 F. 2d 49 (5th Cir. 1958).

Prosecution’s Instruction No. 8 also refers to the statutory presumption of malice. There was an objection to that instruction but no exception, and under R.L.H. 1955, § 212-14, the court can not review No. 8. The statute is binding on the court under the law applicable to this case, i.e., the law prior to the adoption of the new Rules of Criminal Procedure. Territory v. Gomes, 38 Haw. 304, 308 ; Territory v. Pierce, supra; State v. Yoshida, 44 Haw. 81 . However, Prosecution’s No. 8 is nowhere near as prejudicial as No. 6.

Prosecution’s No. 6 was in the words of the statute, R.L.H. 1955, § 291-2, which reads:

“When the act of killing another is proved, malice *435 aforethought shall be presumed, and the burden shall rest upon the party who committed the killing to show that it did not exist, or a legal justification or extenuation therefor.”

This provision was enacted by section 2 of the Act of June 30, 1860, S.L.H. 1860, p. 15. The statute takes its meaning from the common law. See Territory v. Scully, 22 Haw. 618, 629 .

In Territory v. Cutad, 37 Haw. 182 , the court sounded an emphatic warning against the indiscriminate use of an instruction in the words of the statute. Though finding it unnecessary to pass on the instruction, the court said:

“* * * Oases are conceivable in which the provisions of the statute are applicable and that an instruction embodying its provisions might be appropriate if accompanied by supplementary instructions construing the word ‘presumed’ and the word ‘burden.’ But the provisions of the statute are not applicable to every case of murder and care should be exercised in its use. It would serve no useful purpose at this time for us to express our views upon the subject but enough is said in 2 McClain on Criminal Law, sections 332 and 333 and the cases cited on page 300, note 3, and page 303, note 1, to give food for thought.” (37 Haw. at p. 188.)

Previously, in Territory v. Buick, 27 Haw. 28, 57 , an instruction in the words of the statute was deemed inapplicable and harmless when:

“* * * there was no evidence in the case permitting a finding by the jury that the killing was without malice aforethought. Upon the evidence as it stood, it was compulsory upon the jury, if it believed that the defendant did the shooting, to find that the killing was with malice aforethought and that the offense was murder. Under these circumstances, the giving of an *436 instruction concerning the statutory presumption of malice in such cases could not possibly have been prejudicial to the defendant.”

At common law: “The fact of the killing being first proved, the law presumes it to have been founded in malice, unless the contrary appears.” This is “a rule of evidence to the effect that if the homicide is proved, and the evidence adduced to establish it shows neither mitigation nor justification, malice will be presumed from the proof of the homicide; * * *. If the evidence adduced to establish the homicide presents two conflicting inferences, one of malice and the other an absence of malice, then it becomes a question of fact, to be decided by the jury, as to which aspect of the evidence is the real truth of the occurrence.” Mann v. State, 124 Ga. 760 , 53 S.E. 324 , annotated 4 L.R.A., N.S. 934; Erwin v. State, 29 Ohio St. 186, 191 ; Wharton, Homicide, 3d ed., § 94, p. 117, note 5, § 104, pp. 142-143; 1 McClain, Criminal Law, §§ 332 and 333.

Speaking of the origin of the presumption, Moreland states in his work on Homicide, pp. 11-12:

“The starting point seems to have occurred in cases of sudden killing without apparent provocation. In such situations the state of mind being subjective and undisclosed and undiscoverable except by an interpretation of the facts, the law inferred a concealed motive and previous malice. Lambard, writing in 1581, states: . . many times the law [judges the] malice which lurked before within the party, . . . and therefore if one suddenly and without any outward show of present quarrel or offence [draws] his weapon and . . . [kills] another . . ., the law [judges] it to have proceeded of former malice, meditated within his own mind, however it [is] kept secret from the sight of other men.’ ”

Accordingly, when the prosecution’s evidence discloses *437 circumstances from which the jury might infer provocation reducing the homicide to manslaughter — though it might not so infer — the jury should not he charged as to the presumption unless coupled with a statement that the evidence which proves the killing may rebut the presumption. 4 Warren, Homicide, Perm. Ed. § 324, pp. 60-63, notes 22-28, p. 70, notes 62-63; 1 McClain, Criminal Law, §§ 332 and 333; 26 Am. Jur., Homicide, §§ 307 and 536; 40 C.J.S., Homicide, §§ 23, 28; 41 C.J.S., Homicide, § 357b; State v. Hayden, 131 Iowa 1 , 107 N.W. 929 ; Turner v. State, 16 Tex. Cr. Rep. 378, 392; Hornsby v. State, 94 Ala. 55 , 10 So. 522 , 526; Anders v. State, 255 Ala. 319 , 51 So. 2d. 711 ; State v. Trivas, 32 La. Ann. 1086 , 36 Am. Rep. 293 ; Green v. State, 124 Ga. 343 , 52 S.E. 431 ; Darden v. State, 73 Ark. 315 , 84 S.W. 507 ; Gamblin v. State, 29 So. 764 (Miss.); see also State v. Boggs, 129 W. Va. 603 , 42 S.E. 2d 1, 8 (reviewing the cases on this subject but reversing on other grounds); State v. Holbrook, 232 N.C. 503 , 61 S.E. 2d 361 (finding no reversible error in the particular case); but cf. State v. Mangino, 108 N.J.L. 475 , 156 Atl. 430 ; State v. Corrado, 113 N.J.L. 53 , 172 Atl. 571 , State v. Williams, 29 N.J. 27 , 148 A. 2d 22 .

For cases in which an instruction as to the presumption has been approved when qualified so as to make it plain that the mitigating circumstances may be found in the prosecution’s evidence, see Mann v. State, supra; Whitfield v. State, 209 Ga. 804 , 76 S.E. 2d 405 ; Commonwealth v. Bedrosian, 247 Mass. 573, 142 N.E. 778 ; State v. Alexander, 30 S.C. 74 , 8 S.E. 440 ; Wallen v. Commonwealth, 134 Va. 773 , 114 S.E. 786 ; Scott v. Commonwealth, 143 Va. 510 , 129 S.E. 360 ; Saulsbury v. State, 83 Okla. Cr. 7 , 172 P. 2d 440 . While these cases are correct in principle, in some the language of the particular instruction may have been subject to criticism.

In State v. Copenbarger, 52 Idaho 441 , 16 P. 2d 383 , *438 a conviction of murder in the second degree was reversed because of a charge of the presumption which was contradictory and failed to convey the correct rule, embodied in the Idaho statute but not clearly set forth in the instructions. There, as here, the state took the position that the presumption was sufficient to sustain the conviction. The court said:

“Where the state’s case is bare of exculpatory evidence, there is no question as to the application of the rule contended for by the Attorney General. * * *.

“* * * The difficulty with the state’s position is that it seeks the benefit of the presumption, even though it presented evidence in extenuation.” (p. 385)

Quoting the California rule the court said further:

“* * * If the proof on the part of the prosecution tends to show that the homicide amounts only to manslaughter, * * * then no burden is placed on the defendant to prove any circumstances of mitigation, * * *.

“We do not mean to say that, under the circumstances, the jury is required to believe the exculpatory matter * * *. The only effect of the rule is to deprive the state of the benefit of the presumption of malice. * * * ” (p. 387)

For the California rule, see People v. Deloney, 41 Cal. 2d 832 , 264 P. 2d 532, 537 , in which the court referred to Penal Code 1105, which, like the Idaho statute, is more complete than our statute, since the shifting of the burden to the defendant is conditioned upon absence of proof on the part of the prosecution tending to show that the crime is manslaughter. However, the court stated:

“This court has held repeatedly that a jury should not be instructed in the language of section 1105. * * *.

“* * * If the jury is instructed in the words of the statute alone, it may be misled into construing the ‘burden of proving circumstances of mitigation’ as *439 imposing upon the defendant the burden of persuasion and into believing that mitigating circumstances do not exist unless the defendant proves the existence of such circumstances by a preponderance of the evidence.”

See also People v. Carson, 43 Cal. App. 2d 40 , 110 P. 2d 98, 100 (D.O.A. 2d Dist.).

In the present case, from the prosecution’s own evidence the jury might have found mitigating circumstances. The prosecution identified the gun and showed that two bullets had been fired, of which one passed through the front door, striking the hinge. The evidence that deceased fired this other shot was at least as good as that defendant fired it, unless discounted because of the evidence that deceased had enough alcohol in his blood to render him unconscious. But the jury might have rejected the view that deceased was unconscious when this other shot was fired. Dr. Majoska testified that a man with the alcoholic content in his blood that deceased had would be unconscious in 90% of such cases, not 100%. Furthermore, there was no testimony as to the particular time at which deceased must have been rendered unconscious. He was nude, and the two piles of clothes found on the first floor were not identified as his though this clearly could have been done, if they were his, since a description of what he had been wearing had been obtained from defendant. If deceased went upstairs, disrobed and returned downstairs, he by the same token could have remained conscious long enough to have fired the shot through the front door. The gun was kept in a closet upstairs. There was nothing to show that defendant was upstairs before the homicide occurred. It was established that defendant was upstairs after the homicide occurred. Only the defendant could have returned the gun to the shelf in the closet. Her oral statements to police at the scene indicated that she stood on a chair to reach the shelf in the closet, but were of no *440 particular significance in shedding light on the question of who brought the gun downstairs. The paraffin nitrate test indicated the presence of some nitrate substance on both of deceased’s hands. If it was deceased who brought the gun downstairs and he suddenly appeared with it after he had disrobed and was supposed to have retired, he might well have put defendant in fear. If a struggle ensued during which the shot through the front door was fired, the five to seven-minute interval between the two shots might have been deemed by the jury insufficient to divorce the homicide from the provocation. The jury could have believed the homicide was no accident, yet believed that defendant, due to adequate provocation, was in a state where she was beyond the control of reason when she fired the fatal shot.

The charge in the words of the statute, presuming malice and placing upon the defendant the burden of showing extenuating circumstances without qualification, withdrew from the jury’s consideration the prosecution’s evidence concerning the surrounding circumstances and should not have been given for that reason. The instruction in the words of the statute should not have been given for the additional reason well stated in the California case of People v. Deloney, supra. For even in a case in which the evidence put on by the prosecution shows an intentional killing by the defendant without any showing of mitigating circumstances, so that the burden of proof does in fact shift to the defendant, still the jury cannot be expected to understand the niceties of a shifting burden of proof without explanation. The jury is to find upon all of the evidence whether there were mitigating circumstances or evidence thereof sufficient to raise a reasonable doubt as to the existence of malice.

Considering the evidence and the charge as a whole, I am of the view that the jury could not have but con- *441 eluded that the prosecution had a complete case of second degree murder as a matter of law, without any finding upon the part of the jury other than that it was the defendant who killed the deceased. I would reverse on the ground of the error in the giving of Prosecution’s Instruction No. 6 over objection and exception.

Note

(Appended to concurring opinion of Lewis, J.)

Pros. #6. Settled May 7, ’59 over objection; exception taken and error assigned

Deft’s. #17. Requested and Settled May 8, ’59, as modified, by agreement

Pros. #8. Settled May 7, ’59 over objection; no exception taken; error assigned

Excerpts from the charge to the jury:

“Under the laws of the Territory of Hawaii when the act of killing another is proved, malice aforethought shall be presumed, and the burden shall rest upon the party who committed the killing to show that it did not exist, or a legal justification or extenuation therefor.

“In this connection, I further instruct you that before you can consider this presumption the Territory must have proven, upon all the evidence and beyond a reasonable doubt, that it was the Defendant who killed the deceased.

“Voluntary intoxication affords no excuse, justification or extenuation of a crime committed under its influence. It, however, may be a defense where a specific intent is an essential ingredient of the crime charged. In such cases it is relevant to show that the degree of intoxication was such that the accused could not have formed the required intent. Thus, in the instant case, if you find the defendant to have been intoxicated at the time of the offense, said intoxication will not excuse or justify the killing of Francis Cecil Foster. It may be used merely to show that the defendant may not have had the malicious intent requisite for the of *442 fense of murder in the second degree. It will not, however, excuse the Defendant for the offense if such malice was present, or if you find that the statutory presumption of its presence has not been rebutted.”