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Yamashiro v Trust Territory [1963] TTLawRp 25; 2 TTR 638 (18 February 1963)

APPELLATE DIVISION OF THE HIGH COURT

Criminal Appeal No. 18

TAKEO YAMASHIRO

Appellant

v.

TRUST TERRITORY OF THE PACIFIC ISLANDS

Appellee

February 18, 1963

Appeal from conviction of murder in the first degree in violation of T.T.C., Sec. 385, by the Trial Division of the High Court, Palau District. Appellant contends that trial court erred in rejecting prosecutor's offer of witness for cross-examination whom he had not called to testify, that court erred in admitting confession into evidence which had been procured by coercion, and that confession was not corroborated. The Appellate Division of the High Court, Chief Justice E. P. Furber, held that decision as to whether or not to permit cross-examination of prosecution's witness who had not been called to testify was in discretion of trial judge, that confession was voluntary exculpatory statement, and that confession was amply corroborated by circumstantial evidence.

Affirmed.

1. Criminal Law-Rights of Accused-Confrontation of Witnesses

Matter of whether to permit witnesses of prosecution, whose testimony would be merely cumulative, to be offered for cross-examination without taking time for direct examination, rests in discretion of trial court.

2. Criminal Law-Witnesses

Common law rule, that it is duty of prosecution in felony cases to call and examine all persons who have knowledge of material facts, arose under system where accused had no right of compulsory process for obtaining witnesses in his favor, and rule has no application in Trust Territory where accused is granted this right under Bill of Rights. (T.T.C., Sec. 4)

3. Appeal and Error-Scope of Review

Appellate court will not interfere with decision of trial court on matter within its discretion unless abuse of discretion is shown.

4. Criminal Law-Rights of Accused-Confrontation of Witnesses

Accused cannot demand as matter of right to be allowed to cross­examine witness who has not been called to testify by either side.

5. Appeal and Error-Scope of Review-Facts

It is function of trial court to make determinations of fact which are dependent upon presentation of conflicting evidence, and appellate court must test sufficiency of proof on basis of what trial court had right to believe and not on what appellant wishes it believed.

6. Appeal and Error-Scope of Review-Facts

Finding of fact by Trial Division of the High Court will not be set aside by Appellate Division unless clearly erroneous. (T.T.C., Sec. 200)

7. Appeal and Error-Scope of Review-Facts

Principle that appellate court will not set aside fact findings of· trial court unless clearly erroneous applies to findings incidental to rulings in course of trial.

8. Confessions-Admissibility