
    THE TERRITORY OF HAWAII v. AH SING AND 67 OTHERS.
    ERROR TO OlRCJUIT Couet, Eiest Otbouit.
    Argued October 17, 1907.
    Decided November 4, 1907.
    HaETWEEL, O.J., WlUBEE AND BaDEOU, JJ.
    
      Eyjdexok — execution of document.
    
    A bail bond, purporting to be signed by a defendant, offered in evidence for the purpose of identifying him by means of a recital therein, is inadmissible unless accompanied by evidence that it was executed by the defendant.
   OPINION OP THE COURT BY

BAIjLOU, J.

The defendant Ah Sing, ivho we have held is the only person having any standing in the prosecution of the above entitled writ of error (ante, page 392), was convicted in the district court of Honolulu and again on appeal in the circuit court of the first circuit of violating R. L. Sec. 3175 by being present at a place where certain gambling games were being carried on. The assignments of error relied upon relate to the lack of identification of the accused and error in admitting in evidence a bail bond for the purpose of such identification.

The record shows that a room in which gambling ivas going on was raided by several members of the grand jury, and sixty-eight Chinese who were there present were arrested. These were taken to the'police station, where they were released upon depositing cash bail. It does not appear from the record when the arrested persons first gave1 their name's. Some days later Ah Sing and sixty-seven others, by name, were tried in the district court of Honolulu and convicted. On the same day an appeal bond was given purporting to be signed by the persons convicted -and (heir surety, containing the following recital:

“The condition of this obligation is such that whereas the above bonnden principals were arrested npon a charge of violating Section 3175 of the Revised Laws of Hawaii, by being present at a place where certain gambling games were being carried on known as fan tan and pai kan were being carried on at which money or something of value was lost and won and, whereas the said principals were npon the 27th day of November, A. T). 1906, convicted of said charge, by the Honorable S. IT. Derby, Second District Magistrate of the District Court of Honolulu, County of Oahu, and sentenced to pay a fine of Twenty-five dollars ($25.00) and the costs of s'aid prosecution, and whereas said Principals have appealed from the judgment of said Court to the Circuit Court of the Eirst Judicial Circuit at its next term,” etc.

At the trial in the circuit court some of the defendants were identified hv name or appearance 'as having been in the room on the occasion testified to. In the case of others,' including Ah Sing, no witness was called either to identify them as having been present at the gambling game or as having been aniong those who were ’arrested and taken-to the police station. For evidence of identification the prosecution i°lied upon the introduction in evidence of the bail bond above referred to, claiming that its recital was an admission that the persons named and signing as principals were arrested, and this, coupled with the evidence that the persons arrested Avere guilty of the offense, and the presumption of identity of persons from identity of names, was sufficient to support a conviction.

The evidence furnished by the bail bond is meager and unsatisfactory so far as it connects the persons signing Avith the misdemeanor in question. It does not specify any time or occasion on which they were arrested and it may be doubted Avhother such a recital inserted incidentally in a document designed for an entirely different purpose and signed by persons unfamiliar with the language in AAdiich it Avas written could he held sufficient to support a conviction in the absence of all other identification.

We do not find it necessary lo pass upon this point, hoAv-eATer, as avc are of the opinion that the bond was improperly admitted in evidence for the purpose for which it was offered. Although the name of Charles F. Chillingworth appears on the bond as an attesting witness to the signatures of the principals and surety no proof by such witness or otherwise of its execution was offered. The, bond also bears the words “Approved. Henry 0. Vida, Asst. Sheriff,” and was admitted upon Mr. Vida’s testimony that he was assistant sheriff; that on the 23d of November, 1906, certain Chinese were brought to the police station charged with being present at a gambling game and released on cash bail and afterwards an approved bond was put up in lieu of cash bail, which bond he thereupon identified as the one which he had approved. The bond was then_ offered for the purpose of identifying the parties before the court and admitted over the objection that the signatures of the defendants had not been identified.

M. F. Prosser, Deputy Attorney General, for plaintiff.

B. 17. Breckons for defendant.

To convict a defendant by his own written admission it would seem essential that there be some evidence that he signed the writing or that the signature was his. The tendency .to assume that a signed document is all that it mutely purports to be, without requiring external evidence of authorship, is one which must be constantly. guarded 'against. 3 Wigmore Evidence, Sec. 2130. As a court record the bond might have been admissible for some purposes upon proof of its mere existence, but as a written admission of the defendant of a collateral fact its execution should have been proved like any other written and unrecorded instrument. The assignment of error upon this point is sustained, the judgment of conviction of Ah Sing reversed, and new trial ordered.  