
    THE TERRITORY OF HAWAII v. EDWARD P. CHONG.
    No. 2491.
    Submitted September 20, 1943.
    Decided October 19, 1943.
    Kemp, C. J., Peters and Le Baron, JJ.
   OPINION OF THE COURT BY

LE BARON, J.

The defendant was found guilty of a misdemeanor by the district magistrate of Honolulu in the violation of section 6.11 of ordinance 786 of the 1989 traffic code of the City and County of Honolulu, which deals with the taking by one motor vehicle of the right of way of another vehicle in an intersection of two public highways, and fined five dollars and costs of court. He appealed to the circuit court. The case was there tried de novo before the trial judge, jury waived. The defendant was again found guilty and sentenced to a year’s imprisonment and his license to drive revoked for a period of one year. A stay of execution of sentence was obtained and the matter is now before this court on a writ of error.

Pour assignments are made, specifying two alleged errors in the final judgment of the trial judge. One alleged error pertains to the finding of guilt, the other to the imposition of sentence. The record shows that the only exception pertinent to these alleged errors was the one taken to the judgment, solely upon the grounds that it was contrary to the law and the evidence and the weight of the evidence.

The Territory contends that the grounds of the exception are too general to permit appellate consideration of the alleged error in the finding of guilt within the authority of Ter. v. Jellings, 33 Haw. 103. However, before the form and sufficiency of the instant exception can be ruled upon, it first must be determined whether its taking was necessary. In regard to this preliminary phase of the issue raised by the Territory, the statute (R. L. H. 1935, § 3563) provides that in a writ of error there shall not be “a reversal in any term case * * * for any finding depending on the credibility of witnesses or the weight of the evidence * * * unless such alleged error was made the subject of an exception noted at the time it was committed.” (See Ter. v. Gagarin, 36 Haw. 1.) In that this is a term case upon writ of error and the alleged error relates to a finding depending “on the credibility of witnesses” and “the weight of the evidence,” the statutory requirement applies. Hence it follows that the general rule that an exception should be specific also applies, the object and purpose of an exception remaining constant whether the necessity for its taking arose under section 3530 of the Revised Laws of Hawaii 1935 in order to bring the alleged error before the supreme court in a bill of exceptions, or under section 3563, supra, to enable the supreme court to consider the alleged error as a basis for reversal in a writ of error. The rule is succinctly stated by the court in Ripley & Davis v. Kapiolani Estate, 22 Haw. 507, 508, as follows: “In a long line of decisions this court has held that exceptions must be sufficiently definite and specific to call to the attention of this court a point of law which was called to the attention of the trial court affecting the legality of its ruling, thus giving the lower court the opportunity to correct its ruling if erroneous.” In this rule there is discernible two functions of an exception. One is often termed its essential purpose, which is to advise the trial judge of a precise point upon Avhich it is contended that he has committed an error of law, thereby affording an opportunity to the trial judge to change his ruling if he is satisfied as to error and thus avoid a miscarriage of justice. The other, which may be termed its ultimate objective, is to predicate the alleged error for review so that the ruling or act of the trial judge may be tested later upon the question of law as presented by the exception in determining whether prejudice was caused the excepting litigant. In applying this rule to the instant problem of appellate review, we find that the exception to the finding of guilt on the grounds that it was contrary to the law and the evidence and the weight of the evidence clearly comes within the rule and squarely presents the point of law of whether the evidence was sufficient to support the finding of guilt.

In an analagous situation, this court in Ter. v. Jellings, supra, considered the sufficiency of the evidence by expressly finding that “the verdict of the jury is amply supported and Avarranted by the evidence,” thus properly applying the rule consistently with a long line of its prior adjudications. (James Howland v. Samuel Jacobs, 2 Haw. 155, 157; Bishop v. Kala, 7 Haw. 590, 591; Hayselden v. Wahineaea, 9 Haw. 51, 56; Dowsett v. Maukeala, 9 Haw. 233; Kapuakela v. Iaea, 10 Haw. 99, 100; Smith v. Hamakua Mill Co., 14 Haw. 669, 670; Territory v. Kimura, 15 Haw. 510; Fuller v. Rapid Transit Co., 16 Haw. 1, 9; Kametani v. Okuhama, 28 Haw. 458-460. See Kanamu v. Wilson, 8 Haw. 385; Scott v. Nahale, 13 Haw. 255.) In our opinion, however, the court in Ter. v. Jellings, supra, in stating that the exception is “too general for consideration by this court” did not go far enough in expressing its application of the rule in regard to the subject of the exception, or by way of clarification point out that such an exception, although specific as to error which it predicated, was too general for appellate consideration of other errors not predicated by it and hence not called to the attention of the trial judge at the time they were committed. (Territory v. Puahi, 18 Haw. 649, 655; McCandless v. Honolulu Plantation Co., 19 Haw. 239, 242; see Fraga v. Portuguese Mut. Ben. Soc., 10 Haw. 128, 129; Ripley & Davis v. Kapiolani Estate, supra; Kapela v. Gilliland, 22 Haw. 655, 659; De Freitas v. De Freitas, 25 Haw. 717, 718.)

The form and sufficiency of the exception therefore properly places before this court the question of law as to the sufficiency of the evidence, which Ave Avill consider, the question of the credibility of the Avitnesses remaining within the province of the court below. The defendant Avas convicted upon conflicting evidence and we find from our examination of the record that there is competent and substantial evidence to support and warrant the trial judge’s finding of guilt. For this reason, the allegations of error in regard to the finding of guilt are Avitliout merit, which disposes of assignment one and those portions of assignments two and three Avhich relate thereto.

We will noAV turn our attention to the alleged error in the imposition of sentence as specified by the remaining portions of assignments tAvo and three and by assignment four.

Section 3563, supra, provides that the supreme court in a writ of error “may correct any error appearing on the record,” but qualifies such authority by further providing that there shall not be “a reversal in any term case for any defect of form merely in any declaration, indictment or information or for any matter held for the benefit of the plaintiff in error or for any finding depending on the credibility of witnesses or the weight of the evidence or for any alleged error in tbe admission or rejection of evidence or tbe giving of or refusing to give an instruction to tbe jury unless suclx alleged error was made tbe subject of an exception noted at tbe time it was committed.”

Tbe imposition of sentence, altbougb it follows tbe finding of guilt as a natural sequence and in conjunction tberewitb constitutes tbe final judgment, is not in itself a “finding depending on tbe credibility of witnesses or tbe weight of tbe evidénce” nor does it fall witbin any category of reversible errors listed by tbe statute to wliicb an exception must be taken. Consequently tbe statutory requirement is inapplicable to tbe alleged error in tbe imposition of sentence. Hence it follows that if tbe alleged error appears upon tbe record, it may be corrected without regard to tbe taking of an exception.

Briefly, assignments two and three base their grounds of this alleged error upon the contention that tbe trial judge denied tbe defendant a fair and impartial trial, assignment three stating that tbe trial judge “manifested great prejudice against tbe Defendant and reached bis conclusion as to tbe guilt of tbe Defendant before any evidence was adduced by the Defendant in support of his defense * * * .” We have scanned tbe record and find no indication therein that tbe trial judge manifested any prejudice towards tbe defendant at any time during the trial, or that be evinced a conclusion of guilt before its close. Further, we find it conclusively evidenced by the record that tbe defendant received a fair and impartial trial in tbe court below in every respect and was accorded every right during tbe trial to which be was entitled under tbe laAv and tbe evidence. We have noted that the record shows tbe evidence to have warranted tbe conviction, after which the passing of sentence followed as a matter of course. Therefore assignments two and three are entirely without merit.

Assignment four rests its grounds of alleged error upon tbe contention that tbe sentence is “a nullity in law, was excessive and tbe punishment imposed was cruel and unusual and therefore in violation of tbe defendant’s rights under tbe Constitution of tbe United States and the Eighth Amendment thereof * * * .” We find that the sentence, having been imposed pursuant to a conviction for the violation of a section of the traffic code and being within the scope of two penalizing ordinances (Traffic Code 1939, O. 786, §§ 13.03, 13.04), is clearly sanctioned by the law. Counsel for the defendant does not question the law, nor challenge its constitutionality. Consequently his contention that a mere conformity with the law would in itself constitute a nullity, a deprivation of constitutional rights or an infliction of a cruel and unusual punishment, is unworthy of serious consideration.

There remains the ground that the sentence is excessive.

The supreme court is expressly empowered by statute (R. L. H. 1935, § 3563) to correct and modify a sentence in a criminal case before it on a writ of error when in its opinion the sentence is excessive and would injuriously affect the substantial rights of the defendant. We construe this general authority to apply equally to a sentence within the scope of legislative enactment as well as to one extending beyond it, and that the imposition of such excessive sentence, while not a ground for reversal, would be nevertheless an “error appearing on the record.”

The primary intention of the board of supervisors of Honolulu in authorizing the punishment of traffic violators "* * * by a fine of not more than one thousand dollars or by imprisonment in the Honolulu jail for not more than one year, or by both such fine and imprisonment” (§ 13.03, supra), and in authorizing an additional punishment by a revocation of the defendant’s driving license “ * * * for a period not to exceed one year * * * ” (§ 13.04, supra), we construe is to keep the extent of punishment within the bounds of a misdemeanor (see Traffic Code 1939, O. 786, § 3.02) and immediately below the bounds of a felony (see R. L. H. 1935, § 5301). The board of supervisors in thus fixing the ceiling above which a defendant cannot be penalized for a violation of a section of the traffic code provides the trial judge with a broad range of penalties thereunder from which he may draw in determining the punishment to be imposed, so as to enable the trial judge to deal justly with all violators as individuals in direct proportion to the degree of culpability of each and in the exercise of his sound judicial discretion. This degree of culpability varies from one who is technically guilty to another who is flagrantly guilty, and may well vary from a first offender to a habitual criminal, according to the circumstances.

The record shows that there was but one issue before the court, i.e., which motor vehicle entered the intersection first, it being established that the defendant’s, a motorcycle, entered from the right of the other vehicle, an automobile. On this issue the defendant was found guilty upon conflicting evidence, the strongest against him being the marks on the road at the point of impact.

The record discloses that there were no precautionary stop signs at the intersection where the collision occurred, the driver of the automobile testifying that the intersection was “a bad one” and the Territory not disputing the testimony of the defendant that his vision, from his position while approaching it on his motorcycle, was obscured on the left by an intervening hibiscus hedge up to ten feet of the intersection. The record does not show that any appraisal of the property damages was made and, although the damage to the motorcycle is designated by the evidence as negligible, no comparative designation is given to the damage to the automobile. Tbe record further shows that the Territory placed the speed of the automobile at the time of the collision at a rate of between 15 and 20 miles an hour, but adduced no evidence in respect to the rate of speed of the motorcycle, nor did it attempt to estimate the approximate rate by expert opinion from the physical evidence. Neither did the trial judge express an opinion thereof from the evidence and his personal observation of the damaged automobile, although he found therefrom that the automobile had entered the intersection first and was struck by the motorcycle on the right rear side. If such had been given it would have been afforded great weight by this court. In its absence, we must look to the record and the case for the Territory as it portrays the nature of the collision. In doing so, we find no evidence which would reasonably attribute an inordinate rate of speed to the motorcycle. Further, 'the record shows that the defendant sustained the only severe personal injuries and does not reveal any prior violation of the law by him. Consequently there appears in the record no circumstance or combination of circumstances which would indicate a high degree of culpability in the defendant or which would tend to aggravate his offense into an extraordinary or flagrant violation of the law warranting the severe measure of punishment imposed by the trial judge, nor do the interests of justice require it as an example for others.

In the light of all the circumstances, including the fact that this is not a flagrant violation, and apparently is the defendant’s first offense against the law, we are forced to the opinion that the sentence imposed by the court below is excessive, injuriously affecting the substantial rights of the defendant and should be materially reduced.

Upon due deliberation we believe that after the injuries and the warning which the defendant has received, a reduction of sentence to the payment of a fine in the amount of fifty dollars and a suspension of his license to drive for thirty days will sufficiently restrain him from a repetition of the offense, and at the same time adequately meet the ends of justice.

C. B. Dwight for the defendant, plaintiff in error.

C. E. Cassidy, Public Prosecutor, and J. E. Parks, Assistant Public Prosecutor, for the Territory.

Judgment will therefore be entered, correcting and modifying the sentence in accordance with this opinion, and remanding the cause to the lower court for the imposition and execution of the corrected and modified sentence.  