
    REPUBLIC OF HAWAII v. AH PING.
    EXCEPTIONS FROM CIRCUIT COURT, FlFTH CIRCUIT.
    Submitted October 2, 1896.
    Decided October 27, 1896.
    Judd, C.J., Frear and Whiting, J J.
    Exceptions to a charge on the grounds that it violated the statute against commenting upon the strength of the evidence and gave undue prominence to a particular' portion of the evidence, overruled under the circumstances.
   OPINION OP THE COURT BY

PREAR, J.

Tbe defendant was convicted of larceny in tbe second degree in tbe Circuit Court of Kauai, on appeal from tbe District Magistrate of Waimea, on tbat Island, and brings tbe case bere on an exception to tbe charge of tbe presiding Judge to tbe jury, and more particularly to tbat portion of tbe charge which reads as follows:

“If you believe tbat Mr. Massie on bis interview with tbe defendant, on tbe morning after tbe theft, did not mention tbe $20 piece, then tbe statement by tbe defendant to Mr. Black-stadt tbat a twenty-dollar piece and some silver bad been stolen by some one, if you believe that be made such a statement, needs to be accounted for; and if you believe tbe testimony of tbe prosecution on this point, then such a statement by defendant, if be made it, does have a tendency to prove 'that tbe defendant was tbe one who stole tbe money. If, on tbe other band, you believe tbe evidence of tbe defendant on tbis point, tben bis statement to Mr. Blackstadt is accounted for.”

Tbe Judge also charged tbe jury tbat, “If upon tbe whole evidence in tbe case you are not convinced beyond a reasonable doubt of tbe defendant’s guilt, you must acquit. But if you are thoroughly convinced beyond a reasonable doubt of defendant’s guilt, you must render a verdict of guilt.”

Tbe evidence not having been made a part of tbe bill of exceptions, it must be assumed to have been such as would have justified, if possible, tbe Judge in giving tbe instruction. We may at least assume tbat it was as stated in argument by tbe Deputy Attorney-G-eneral and not contradicted by defendant’s counsel, in substance, tbat a twenty-dollar gold piece and some silver bad been stolen from Mr. Massie; tbat tbe money bad been kept under lock and key in Mr. Massie’s bouse; tbat there was no explainable way in which tbe defendant, if be were innocent, could have known tbe amount or denomination of tbe money unless told by Mr. Massie; tbat be was not told by Mr. Massie; tbat he knew money was kept there; tbat be bad opportunity as a household servant to steal it, and tbat after tbe theft be told Mr. Blackstadt tbat a twenty-dollar gold piece and some silver bad been stolen. Against tbis was tbe defendant’s testimony tbat Mr. Massie bad told him what money bad been stolen.

Two objections are made to tbe charge. Tbe first is tbat it violated Sec. 1, Ob. 56, Laws of 1892, which provides tbat “Tbe jury shall in all cases be the exclusive judges of tbe facts in suits tried before them, and tbe Judge or Justice presiding at any jury trial (hereinafter named tbe Court) shall imno case comment upon tbe character, quality, strength, weakness or credibility of any evidence submitted, or upon tbe character, attitude, appearance, motive or reliability of any witness sworn in a cause.” "We think, however, tbat although part of tbe instruction may go too far taken by itself, tbe instruction as a whole comes within tbe proviso in tbe latter part of tbe section above quoted, “tbat nothing herein shall be construed to prohibit tbe Court from charging tbe jury whether there is or is not evidence (indicating the evidence) tending to establish or to rebut any specific fact involved in a canse.” There seems to have been no question that the money had been stolen. The question was, who stole it? And the Judge in effect charged that there was evidence, namely, Mr. Massie’s statement that he had not told defendant the character of the money, tending to prove the specific fact that the defendant was the one who stole it.

Deputy Attorney-General E. P. Dole, for prosecution.

Thurston & Stanley, for defendant.

The second objection to the charge is that it places undue importance upon a particular portion of the evidence and ignores the rest. The evidence referred to was in fact the turning point in the case, and the portion of the instruction that was given “upon the whole evidence” was, so far as appears, all that the rest of the evidence called for. No doubt a charge might under some circumstances, though strictly correct so far as it goes, mislead the jury by giving undue prominence to some of the evidence. In this case, however, we are of the opinion that the defendant was not prejudiced in this respect. The Court certainly is not bound in all cases to review the whole, evidence because it has specifically referred to one portion.

The case cited by defendant’s counsel, Smith v. State, 43 Tex. 103, on both points raised, differs somewhat in its facts from the present case, and the Texas statute does not appear to have the proviso contained in ours.

The exception is overruled.  