
    TERRITORY OF HAWAII v. HERBERT GOMES, ALSO KNOWN AS HERBERT GOMES COSTA.
    No. 2682.
    Filed March 12, 1949.
    Decided March 22, 1949.
    Kemp, C. J., Peters and Le Baron, JJ.
   Per Curiam.

Defendant’s petition for a rehearing sets forth two grounds therefor. They are first, that we erred in refusing to consider defendant’s assignment of error number VI complaining of the trial court’s refusal to give defendant’s requested instruction number 7. Defendant’s contention is that we erred in applying the provision of section 9564, Revised Laws of Hawaii 1945, to the effect that there shall be no reversal in any term case for the giving- or refusing to give an instruction to the jury unless such alleged error ivas made the subject of an exception noted at the time it was committed.

His argument is that since said statute prescribes a rule of practice much more strict and harsh than the practice which prevailed prior to its enactment, it should not be employed as a means of preventing full consideration by an appellate court of a criminal conviction. This argument might properly be addressed to the legislature but not to this court whose duty it is to uphold valid statutory enactments.

H. K. II. Lee and D. R. Castleman, Jr., for the petition.

Defendant’s second ground is that we failed to give adequate consideration to his assignment of error number VII complaining of the refusal of the trial court to instruct the jury to find the defendant not guilty. His argument is that the only evidence tending to show that the burning was malicious is to be found in defendant’s confession and he contends that the confession cannot be used to establish malice.

Defendant’s contention that the only evidence tending to establish malice is contained in the defendant’s confession is not supported by the record. This claim was presented by the defendant, carefully and fully considered by the court, and rejected. The record contains ample evidence apart from the defendant’s confession to justify a finding by the jury of all the elements of the crime of arson, including the element of malice, and to identify the defendant as the perpetrator of the crime. His confession only confirmed what the other evidence established.

The petition for rehearing is denied without argument under the rule.  