We find no abuse of discretion. From a review of the record we conclude that all the requirements of the foregoing statute for the qualification of a minor witness are satisfied. State v. Ponteras, 44 Haw. 71, 351 P.2d 1097; Territory v. Martin, supra; Territory v. Sabado, 38 Haw. 486; Territory v. Silva, 26 Haw. 648. Specification number five concerns defendant's motion for a mental examination. It was made orally, unsupported by affidavits or other proof.
Substantial compliance with the statute is sufficient. No formal affirmation or declaration "as those terms are used in the law" is required. Territory v. Silva, 26 Haw. 648. In Territory v. Silva the affirmation or declaration required by the statute was held to have been satisfied merely by an affirmative response of a seven year old witness to a statement made to her by the trial judge as follows: "These things that you are going to tell me about and that you are going to tell the jury about the defendant, this man over here, all of those things you will tell the truth about?
This subject has been considered by this court in several cases. In Territory v. Silva, 27 Haw. 270, the leading case on the subject, it was held that a conviction for assault and battery is under our statute a bar to a subsequent prosecution for rape arising out of the same transaction, because of the fact that a rape could not be committed without by the same act committing an assault and battery. It is evident that some of the acts denounced by section 5943 could be committed without being present where a prohibited game is being played or carried on. Clearly, one could cause a prohibited game to be opened without being present at the place where such game was being played or carried on. But here the indictments charge that the defendant did "conduct" the game at which it is admitted he was unlawfully present and for which he has been convicted and punished. It being alleged in the plea and admitted by the prosecution that the former conviction and the charge in the indictment are based on the same transaction, which necessarily includes the act of being present, the act of bei
It is indispensable to the completed offense that there should be not only an assault but also a battery, or, in other words, an assault and battery." Territory v. Silva, 27 Haw. 270. And as pointed out in In re Gaspar, ante, p. 484, a defendant on trial charged with manslaughter may be convicted of the crime of assault and battery if the facts established warrant. A simple assault is always a necessary ingredient of the crime of assault with intent to commit rape.
[1] The defendant cites a number of cases from other jurisdictions that appear to hold that a battery is an indispensable element to the crime of rape. People v. Mendoza, 55 Cal.App.2d 625, 131 P.2d 622; Territory v. Silva, 27 Haw. 271. There are no Illinois cases on this precise point but we have recently held that a "Battery is neither the same nor is it an includable offense in the crime of attempted rape." People v. Thompson, 87 Ill. App.2d 426, 430, 230 N.E.2d 889.