
    STATE OF HAWAII, Plaintiff-Appellee v. STEPHEN R. TANGALIN, Defendant-Appellant
    NO. 8610
    (CRIMINAL NO. 35-81-10-7)
    JANUARY 28, 1983
    LUM, ACTING C.J., NAKAMURA, PADGETT AND HAYASHI, JJ„ AND RETIRED JUSTICE MENOR, ASSIGNED BY REASON OF VACANCY
   OPINION OF THE COURT BY

PADGETT, J.

This is an appeal from a conviction of theft in the third degree. The sole point on appeal, although stated in three different ways, is a claim that the court committed error by finding the complaining witness’ testimony more credible than that of the appellant since the prosecutor and appellant’s attorney had stipulated that appellant was credible. We affirm.

To begin with, the stipulation was not that appellant was more credible than the complaining witness. It simply was that he was credible. If both were credible, the court below had to choose between them and make a finding on credibility because their testimony as to whether appellant took the goods in question was diametrically opposed.

Moreover, it is well established that matters affecting the public interest cannot be made the subject of stipulation so as to control the court’s action with respect thereto. 73 AM. JUR.2d, Stipulations, § 4(1974); 83 C.J.S., Stipulations, §§ 17 and 23(b) (1953). Criminal cases are per se matters affecting public interest and so the court’s determination of credibility cannot be controlled by the parties’ stipulations.

Michael K. Tanigawa, Deputy Public Defender, and law student Mariano V. Hernando, on the brief, for appellant.

Loma A. Nishimitsu, Deputy Prosecuting Attorney, on the brief, for appellee.

Affirmed.  