
    SUPREME COURT—IN BANCO.
    
      Allen, Gh. J., Davis, J.
    
    The King vs. Paakaula and Kahauliko.
    A majority of the Court may constitutionally hear causes in Banco. Exceptions in criminal causes lie from the Circuit Courts. Admission of the evidence of a boy who said he “ did not know the result if he testified falsely ” is correct, if the Court were satisfied of his belief in God and in his accountability. It is not error to admit improper evidence if it is afterwards ruled out. The competency of confessions is for the Court to decide. The burden of proof is on the defence to show inducements. Prisoners may be indicted jointly for crime. Confession before a Magistrate will be excluded “if made in consequence of a previous threat or promise by a person who may be supposed to have some authority or influence.”
   By the Court.

A motion was made a few days ago for an assignment of a time to hear an argument on the exceptions and a motion for a new trial in this case, and a day was assigned'. In the meantime occurred the lamented death of our highly esteemed EIrst Associate Justice, and now the counsel who filed the exceptions, and made the motion for a new trial, moves the Court for a “ stay of execution of the sentence until such time as a full bench can be procured for the hearing and argument of the exceptions and motion for a new trial.” And the first question which arises is : Is it competent for the Court, constituted as it now is, to make judicial decisions ?

The Constitution expressly declares that decisions of the Supreme Court, when made by a majority of the Justices thereof, shall be final ancl conclusive between the parties. A majority of the Court are now sitting, and if they concur, the decision is final and conclusive. It is exceedingly desirable ■ for the Court to be full, for the benefit of advice and counsel ; but it is an inevitable law that vacancies will occasionally occur. And has the opinion ever been adopted by any Court that their duties ceased, and the judicial business of the Court was suspended for this cause ? It is very often the case that a lawyer in full practice, and who has been counsel in many important cases pending, is appointed a Justice of the Supreme Court. In these cases he can not sit, but it is a new doctrine that a decision can not be had because the bench is not full. In case of the illness or unavoidable absence of a Justice of the Court, the same consequences would follow. No such power is vested in a single Justice to defeat all legal proceedings by his absence. The only question is : Is there a majority of the Court present ?

But the counsel contend that if a majority of the Court are sufficient as a general principle, in this case, as one of the Court presided at the trial, his ineompeteney renders the Court incomplete,.and constitutionally disqualified for business. By the 820th section of the Civil Code it is provided that no judge shall sit alone on an appeal or new trial in any case in which he may have given a previous judgment. This is certainly a very proper provision of the law, and it does not conflict with the position taken by the Court. It only provides that he shall not sit alone. It is as much his duty to be present and give to the Court his counsel and advice, as if he had not given a previous judgment or opinion. It is the duty of all judges to revise carefully their opinions ; and one fitted for his duties will be happy to have his own views and opinions corrected, if in error. As the Constitution provides that a majority of the Court may give decisions final and conclusive upon all parties, and as the laws make no provision against the sitting of a judge on a case on appeal, or new trial, who has given a previous judgment in the same case, except that he shall not sit alone, we are of opinion that as a majority are now present, the Court are constitutionally qualified for judicial duties, and therefore the motion of the counsel for the prisoners is denied.

The Attorney General contends that this Court has no power to consider exceptions in criminal cases which have been tried in a Circuit Court, and we are of opinion that this question should be considered in this connection, for if the position taken is sound it is an end of the present investigation.

By the Constitution the judicial power of the Kingdom is vested in a Supreme Court and such inferior courts as the Legislature may from time to time establish. The Supreme Court has jurisdiction in all cases in law and equity, civil or criminal, and in all admiralty and maritime cases, whether brought before it by original writ, by appeal or otherwise. The Comt has the power to prevent and correct errors and abuses of all courts of inferior jurisdiction, when no other remedy is expressly provided. The Court has power to make rules for conducting its business. The jurisdiction is vested in the Supreme Court over all cases, whether civil or criminal, no matter whether brought before it by appeal or otherwise. The case is submitted to us by exceptions, and the Court are of the opinion that it comes within the express powers of the Court given by the Civil Code, to consider them, and that they would be violating a great public duty to refuse to do so. These exceptions are legitimately before this Court by the express terms of the Civil Code, which makes it the duty of this Court to correct the errors of all courts of inferior jurisdiction. This case was tried by the Circuit Court of Hawaii, which is a court of inferior jurisdiction, and the counsel for the prisoners alleges error in the ruling of that court, and brings it before this Comt, by exceptions, for correction. Is it not the express duty of the Court to consider them ? In examining the chapter of the Civil Code which defines the powers of the Supreme Court, it will be seen that they can entertain any case in the administration of the laws where parties have been before a court of inferior jurisdiction, and desire the opinion of the highest tribunal, unless otherwise especially provided for. This is the express right' of the party. These general powers were given to prevent the necessity of making special provisions, which would, necessarily, have been numerous. This is a construction which has always been given to the Constitution and laws establishing the courts ; and we regard it as sound, not only in spirit, but that it is in accordance with the express terms of the law. The power of this Court to correct the errors of inferior courts is ample by the terms of the Code, and it has been the practice which the Court has always recognized, and which they were authorized so to do by a general provision of law, to consider exceptions to the opinions and decisions made by a circuit court. We are of opinion, therefore, that the Court is legally constituted and qualified for the duties imposed upon it, and these exceptions were properly allowed by the presiding Judge of the Circuit Court, and that it is our duty to consider and adjudicate upon them. [Civil Code, Sections 817, 820, 829, 830, 833, 836].

The first exception made by the counsel for the prisoners is, that the testimony of the boy Kaholowaa should not have been admitted because he said, I do not know what the result would be if I should testify falsely. ” If this was the entire statement of the examination, the Court would fully accord with the views which the counsel have given. But it appears that he was carefully examined as to his knowledge and belief. in the Deity, and of his youthful convictions of his accountability to that Supreme Being, and of His certain displeasure should he be guilty of falsehood. His answers to these important questions being satisfactory to the Court, his evidence was allowed. The Court charged the jury that they should examine especially his testimony and compare it with the other evidence given at the trial, and that they should give only such weight to it as it merited from its general concurrence with other testimony.

A certain discretion in the admission or exclusion of testimony must he exercised by the presiding Justice in any case, whether capital or not, but it is not a reckless or arbitrary discretion; it is one to be controlled by sound legal principles, and if exercised beyond this, it is in our opinion, a proper subject for review and correction by the superior tribunal.

It is contended further by the counsel for the prisoners that as testimony was admitted on the trial which was subsequently ruled out, the presumption is that it left an impression on the minds of the jury adverse to the prisoners, and therefore a new trial should be granted. It occasionally happens that testimony is admitted and subsequently ruled out; but in such cases the Court should expressly declare to the jury, as was done in this ease, that the testimony is to be entirely disregarded, and it is the solemn duty of the jury to regard the charge. This is not unfrequently done in the course of a trial, but it is a new doctrine that it should defeat the whole proceedings.

The counsel contends further that in introducing testimony of confessions, the burden of proof is on the Crown to show, that there was no inducement held out to the prisoners to confess, for the reason that where the testimony has been given to the jury its influence will be felt, although the judge may charge the jury that they must give it no consideration, The Court regard the rule to be, that while the burden of proof is on the prisoners to show that inducement had been held out to them to confess, it was the right of the counsel to object to the introduction of the testimony until he had the opportunity to prove inducements. The Court would then decide upon the competency of the evidence. But instead of taking this course, the counsel wait till the testimony is given, and then by cross-examination elicit facts which in the judgment of the Court renders the testimony incompetent, and then comes in and files exceptions on the ground that the testimony had an influence against the prisoners, in consequence of which he contends that a new trial should be granted. The Court are of opinion that this exception is not well taken.

It is further contended that as the counsel for the prisoners moved the court for a separate trial, which was overruled, that this is a legitimate ground of exception. Every judge at nisi prills has certain discretionary powers, and this is regarded as one of them. By the indictment it is charged that the acts were done in concert, and when it is so charged there seems to be a peculiar propriety that there should not be separate trials. We are of opinion that the court exercised a sound discretion in the order for a joint trial; and were the same motion made before us in a similar case, we should so adjudge. We do not therefore consider it a proper ground of exception.

In the case of Marchand vs. Colson, [12 Wheaton, 481,] Mr. Justice Story gives the opinion of the court, which is very able and elaborate. The decision is, “That when two or more prisoners are jointly charged in the same indictment with a capital offence, they have not a right by law to be tried separately, without the consent of the prosecution; but such separate trial is a matter to be allowed in the discretion .of the court.” [Commonwealth vs. Robinson and others. 1 Gray, 555.]

The further objection, based upon the admission of the testimony of the magistrate Hoapili, as to the plea of guilty made before him by the prisoners, is one upon which their counsel has placed great weight, and it has also received the serious attention of this Court. It was allowed to go to the jury, as it appeared to the presiding Justice to be in accordance with the ordinary practice of this Court; we would not be understood to say, because it has been often admitted in the Supreme Court at nisi prius, that the practice is so invariable as to admit of no exception, for such is not our opinion. A good cause may be shown to exclude it. It is argued that such a cause exists in this case. In the first place, the rule in the Police Courts and District Courts is for the magistrate, when a prisoner is arraigned' on complaint, to make him acquainted with the charge, and ask him to plead:to it, which being done, it becomes the duty of the magistrate to record it; but it is argued that a previous influence, induced by the officer Neville, was still continuing on the minds of the prisoners, in such a manner that their plea was affected by it. If it were clear to us upon the record that such was the fact, we are of opinion that the plea ought not to have been admitted.

It is not contended that any inducements were held out by the magistrate, and there is no evidence of any. Now as to what Neville and his assistants did and said previously, we find at page 17 of the testimony that Neville swears that he had a conversation with Paakaula, and says, I did not intimidate him or make any inducements ” ; and again at page 19ketestifi.es — “I asked Paakaula if he had sent for me to make a confession, and he said he had. I then swore Paakaula and told him, to tell the truth, and cautioned him not to commit'himself or any other persons, hut to tell the truth ; and that if he did it would be better for all parties, and not. to wrongfully implicate any one. He said he would do so.” As to Kahauliko’s confession, Barrett, the interpreter, and whom we regard for that reason better qualified to give a correct history of what was said in the native language to the prisoners, as he himself said it, swears positively at page 21 of the testimony: — There were no threats or inducements made before Kakauliko’s confession; he made it freely and ■voluntarily, of his own desire.” It will be observed that both these men sent for the Sheriff to come and receive their confessions. The interviews were had with them at their own request, and the only question for us is, did anything that Neville said to either of them, operate to bias their plea before the magistrate ?

The most that we see is the remark to Paakaula, “that it would be better for all parties; ” but this was coupled with a strong caution, and after having been sent for to hear a voluntary confession. There are authorities which sustain the position that although a remark of this nature is made, if joined with a caution, the confession may be received, (and we would remark here that upon the whole subject the authorities are most singularly conflicting). They were also put on oath. The presiding judge excluded the testimony of the officer Neville, and also of others when the confessions were made in his presence. The correctness of this ruling is not, of course, directly in question.

But after all, so far as the plea of guilty is concerned, was it freely and voluntarily made ? were there threats, intimidation, hopes of favor used by Neville, or his constables, of such a character as necessarily to have operated upon the minds of these prisoners, in the presence of one of their own race, sitting as a magistrate, when they were called upon to plead ? We fail to see in the conduct of Neville sufficient to justify a conclusion of this nature. But, added to this, the evidence of the plea of guilty was only permitted to be considered by the jury under a very careful instruction from the Court, as appears from the statement of the presiding judge, to the effect that they could found no presumption of guilt upon that alone, but that it ought, to be sufficiently corroborated by extraneous testimony, or in other words, that without enough testimony outside of it, It was their duty to disregard it altogether. We are to presume that an instruction like this, given (not through an interpreter, but by the Juftice 'himself,) had its legitimate influence. In the case of Hunt vs. People, [3d volume Parker’s Criminal Reports,] the decision was: “Where, on the trial of an indictment, evidence has been improperly received, and excepted to, and it appears that the jury were subsequently instructed by the Court, in its charge, to disregard such evidence, it was held that the erroneous decision in receiving the evidence was no ground for reversing the judgment.” Under these considerations, we feel that the rights of the prisoners were properly guarded by the Court, not only in the introduction of evidence, but in the comments made upon it in the charge. Paakaula was effectually cautioned by the Sheriff, and the evidence of Barrett is, that although Kahauliko was not cautioned, his confession was entirely voluntary.

It is said to be improper to dissuade a prisoner from making a confession if he really wishes to do so, as shutting-out one of the best avenues of arriving at the truth; equally improper would it be to persuade him to make one. We cannot perceive from the record any evidence of such persuasion calculated to influence the plea made before the magistrate Hoapili. As has been demonstrated, the admission of such pleas, unprompted by improper influence, has been allowed in trials before the jury by this Court, when holden by one or more Justices.

We understand the rule has been to admit them whenever it appears that the plea has been made voluntarily, with a full knowledge of the solemnity of the act.

In the case of Rex vs. Courts, [7th Carrington & Payne, 487,] the magistrate before whom the examination was made said “that he held out no inducement to the accused — he told him to tell the truth.” Littleclale, Justice, says: “It can hardly be said that telling a man to tell the truth is advising- him confess what he is really not guilty of. The object of the rule excluding confessions is to exclude all confessions that may have been procured by the prisoner being led to suppose that it will be better for him to admit himself to be guilty of an offence which he really never committed.” In the language of the Deputy Sheriff there was certainly no inducement held out which was calculated to make the confession an untrue one, and more especially against himself. He cautioned him against saying anything that would implicate himself or any one else unjustly. The Court are of opinion that the plea of guilty, before the magistrate, was not a legitimate consequence of any conversation had with the Sheriff, or confession made to him, but it was rather the continuation of a purpose, which he had when he sent for the Sheriff, to make a confession. This seems to have been the voluntary operation of his own mind. Murder is a frightful secret to keep, and by the laws of the human organization, the pei’petrator will often seek relief by communication with others. But if freely and voluntarily made, it is legitimate evidence. The Court will ridgidly exclude all testimony of confession if made in consequence of a previous threat or promise, by a person who may be supposed to have some authority or influence.

Honolulu, March 26th, 1867.

In forming this opinion the Court has had the aid of the presiding Judge of the Circuit where this case was tried, in furnishing a sketch of the proceedings at the trial, aided by the record.

Exceptions overruled. 
      
       Judge Robertson died suddenly at Waianae, Oahu, while on a trip for health and recreation, March 12th, 1867.
     