Opinion
No. 4152.
May 12, 1961.
TSUKIYAMA, C.J., CASSIDY, WIRTZ, LEWIS, JJ., AND CIRCUIT JUDGE McKINLEY ASSIGNED BY REASON OF VACANCY.
Hyman M. Greenstein ( Greenstein Franklin and Ton Seek Pai) for the petition.
Defendant-appellant has petitioned for rehearing on the ground that he was "denied a fair and impartial trial within the meaning of the Due Process Clause of the Constitution of the United States," resting this contention on two matters concerning the questioning of the witness Kakuda. However, it is conceded no objection thereto was made during the trial at which defendant was represented by counsel of his own choosing.
R.L.H. 1955, § 212-14, as amended by S.L.H. 1957, c. 282, applicable to this case, forbids a reversal "for any alleged error in the admission or rejection of evidence * * * unless such alleged error was made the subject of an exception noted at the time it was committed." That statute is binding on the court on review by writ of error. Territory v. Patterson, 38 Haw. 245, 248. Here there was not even an objection made. And with respect to the second of the two matters on which the petition is founded, not only is there the absence of an objection and exception, but also the jury was instructed at the request of defense counsel that Kakuda's refusal to answer questions should be totally disregarded and no motion for a mistrial was made. Cf., Johnson v. United States, 318 U.S. 189; Stewart v. United States, ___ U.S ___, 29 L.W. 4381.
This case has been fully considered and no grounds for rehearing have been shown. Petition denied.