People v. Kamaunu

Temple, J. The defendant was convicted of the crime of murder in the first degree, and sentenced to be hanged. He was charged jointly with one Liloi. During the trial the charge against Liloi was dismissed under section 1099 of the Penal Code, and Liloi was called as a witness against Kamaunu. Witness and Kamaunu were natives of the Sandwich Islands, and spoke English very imperfectly. They had been employed inputting wood, and lived together. They had finished their contract and had just been paid off. There was evidence tending to show that one of them, on the day before the homicide, had purchased a chicken from the deceased. She was an old lady who lived by herself. On the morning after the purchase of the chicken she was found at her gate dead, and some circumstances pointed to defendant and Liloi as the murderers. When sworn, Liloi stated that Kamaunu had purchased the chicken [612]from, deceased, and told him that he believed she had money in the house, because she promptly produced change for a gold coin with which he paid for the-chicken. He stated that during the day they drank wine together, and that at night defendant was absent, from their cabin and witness went to bed. That during the night he heard knocking and opened the door,, when Kamaunu entered. It was between 11 and 12 o’clock. Witness asked: “Where have you been?” Here defendant’s counsel objected to evidence of confessions, because the proper foundation had not been laid. The objection was overruled and exception taken. The witness proceeded: “Him, he say he been take a. walk that night, that is what he say. After that he talka with me he been down that old woman’s, he kill that old woman, he lose pistol—revolver, that is what he say, he talka lose revolver very bad.” This is the substance of the confession, although, on being questioned, some further remarks to thé same effect were elicited.

This was a confession, and the rule is as contended for by counsel for the defense, that the court ought, on a preliminary inquiry, first to determine whether the confession was voluntary. But if the circumstances already show that it must have been voluntary, there would be' no necessity for further inquiry. And if it be admitted that there was error, the question then would be, Did the error affect the substantial rights of the defendant ? If we cannot determine whether there was injury or not, then, since the defendant has not been tried as the law of the land directs, we must presume injury. For to bo so tried is his right. But if we can see that he has not been injured, the judgment will be allowed to stand.