The Queen v. Man

8 Haw. 339, 1892 Haw. LEXIS 56

• Court: Hawaii Supreme Court
• Decided: February 6, 1892
• Status: Published

Opinions

Opinion oe the Court, by

Judd, C.J.

The defendant was convicted at the last September term of the Circuit Court, at Kau, Hawaii, of the offense of selling opium on the 22d January, 1891. Mr. C. Stone, who was drawn on the jury, was asked on the voir dire, “ Do you believe that under our form of oath, Chinamen are equally to be credited with a native Hawaiian or a white man?” He answered, “No, they are not.” Counsel then objected to Mr. Stone sitting on the jury, on the ground of prejudice. The court then asked Mr. Stone several questions which elicited the following: “ I think I could try a case where there is Chinese testimony, and weigh the evidence without prejudice if it had the impress of truth; but I have more confidence in a native’s or white man’s veracity. When a Chinaman is interested, I have not equal belief in their veracity.” This is the evidence in the bill of exceptions. The judge’s notes are, by the bill, to be used as a part of the case. Reference to these shows that the following must be added to Mr. Stone’s statements: “I would not throw out the testimony because the witness was Chinese. I would have less confidence in any witness interested than in one not interested. I could have nearly equal confidence in native or Chinese evidence if interested.”

We think that the whole effect of Mr. Stone’s answers shows that he was not disqualified by prejudice against Chinese testimony. A juror to be impartial is not oblidged to say that he will give equal credence to every witness that testifies. And when a juror says that where there is Chinese testimony, he will weigh the evidence without prejudice if it has the impress of truth, and would not discard it because it was Chinese, he is not disqualified. Moreover, the defendant’s counsel might have challenged Mr. Stone peremptorily. He did not, and let the juror be sworn, not having exhausted his peremptory challenges. The following cases are authority for the position than an erroneous overruling of an objection to a juror avails nothing to the defendant, if he does not finally exhaust his peremptory challenges: Robinson vs. Randall, 82 Ill., 521. Sullings vs. Shakespeare, 46 Mich., 408. Burt vs. Panjaud, 99 U. S., 180.

WTe therefore overrule the exception.

The next point is that the court admitted evidence of a witness to the effect that he knew that the defendant’s business was that of opium selling, and knew of sales of opium made by him in January. The day on which opium was sold was laid in the charge on the 22d January. The objection was made that previous sales were not relevant to sustain the charge of selling on the 22d January.

The rule of law is well settled that “ proof of other offenses may be admitted to prove scienter or guilty knowledge or to make out the res gestae or to exhibit a chain of circumstantial evidence of guilt in respect to the act charged.” Wharton’s Crim. Ev., Section 650.

And in this case the questions were allowed to be asked to show the previous acquaintance of the witness with the defendant, and to explain why he knew that defendant had the drug for sale, and went to him to buy it. The evidence was competent in this view.

We therefore overrule the exceptions.