Opinion
No. 14725.
November 18, 1955.
George Y. Kobayashi, Honolulu, Hawaii, for appellants.
Louis B. Blissard, U.S. Atty., Charles B. Dwight, III, Asst. U.S. Atty., Honolulu, Hawaii, Lloyd H. Burke, U.S. Atty., San Francisco, Cal., for appellee.
Before BONE and LEMMON, Circuit Judges, and HARRISON, District Judge.
Appellants appeal from convictions for the sale of narcotics in four counts.
Bohol submitted himself as a witness. To sustain him as such his counsel inquired as to whether he had been "convicted once for possession of marijuana". He stated that he had on one occasion. Appellants complain of the cross-examination which follows and which is set forth in the footnote. They claim that the prosecutor knew that the conviction in the District Court of the Territory had been appealed to the Territorial Circuit Court where Bohol was entitled to a trial de novo and that in that court a nolle prosequi was entered. There are four ready answers to this: (1) No proper objection was made. Counsel for appellants merely stated "I object" without stating any grounds for his objection. (2) Defendant opened up the matter of prior conviction and the prosecutor was well within his rights in inquiring further into the matter. (3) Bohol admitted a second conviction and is here in no position to ask for a reversal because of his own failure to bring out the fact of the nolle prosequi. (4) For the purpose of impeachment it was proper to inquire into the prior conviction in the territorial district court. Wigmore on Evidence, 3d ed., volume 4, Sec. 1270, pages 538-539, and cases there cited. As to reversal of judgment, op. cit., volume 2, Sec. 523, page 616. Cf. op. cit., volume 2, Sec. 521, note 2, page 614.
"Q. (By Mr. Blissard): Mr. Bohol, when were you convicted of marijuana? A. It was '51.
"Q. 1951? A. 1951.
"Q. Is that the only time you have been convicted of a marijuana or narcotic offense? A. Yes, sir.
"Q. Weren't you convicted in the District Court in Honolulu in 1953 again for possession of marijuana? A. You mean since? Marijuana seeds?
"Q. Were you convicted in 1953 for the possession of marijuana seeds? Is that what you are saying?
"Mr. Kobayashi: Your Honor, I object. If counsel knows anything about these convictions — I don't know about these convictions.
"The Court: I assume that Mr. Blissard knows what he is doing, Mr. Kobayashi.
"Q. (By Mr. Blissard): Were you or were you not convicted in July, 1953, for possession of marijuana? A. Yes.
"Q. So you had been convicted twice? A. But I didn't go to jail for it.
"Q. You didn't go to jail for it?"
The judgment is affirmed.