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Trust Territory v Miller [1972] TTLawRp 20; 6 TTR 193 (1 June 1972)

6 TTR 193

TRUST TERRITORY OF THE PACIFIC ISLANDS

v.

CHARLES P. MILLER

Criminal Appeal No. 34
Appellate Division of the High Court

June 1, 1972

Appeal from second degree murder conviction. The Appellate Division of the High Court, Arvin H. Brown, Jr., Associate Justice, held that conviction would be reversed where evidence raised presumption of guilt of some offense, but did not show what offense.

1. Homicide - Murder in Second Degree - Evidence Held Insufficient

Where two men and a woman were stranded for two months on a boat that had run aground on a reef, one of the men and the woman were rescued, the next day the man, defendant, stated in an affidavit that the other man fell overboard at night and was last seen face down being carried away by a current so strong as to make rescue probably impossible and too risky, and a few days later the man was found dead in the forward hold of the grounded boat as a result of being shot in the back of the head, all of the evidence was circumstantial and there was no direct evidence bearing upon what actually happened; and though it was established beyond a reasonable doubt that death was due to accident, negligence or homicide, it was not established beyond a reasonable doubt which was the case and conviction of second degree murder would be reversed.

2. Appeal and Error - Scope of Review - Weight of Evidence

It is not the function of the Appellate Division to weigh evidence.

3. Evidence - Hearsay

Generally, hearsay may not be allowed to lift itself by its own bootstraps to the level of competent evidence.

4. Homicide - Murder in Second Degree - Hearsay

Where defendant on trial for murder of man he had been stranded on boat with had stated by affidavit that man had fallen overboard at night and that strong current made rescue probably impossible and too risky, and man was later found dead in forward hold of boat as a result of a bullet in the back of the head, testimony of conversations in which defendant stated, in essence, what he had stated in the false affidavit was admissible under exception to hearsay rule.

5. Evidence - Extra-Judicial Statements -- Impeachment

Extra-judicial statement by a party-opponent may be used against him as an admission if it is inconsistent with the facts.

6. Homicide - Murder in Second Degree - Hearsay

Out-of-court statement by co-defendant in murder trial, exculpatory as to herself and tending to accuse her co-defendant, was inadmissible hearsay where admitted through witness to whom the statement was made, and admission in evidence was error of such magnitude as to require reversal of judgment convicting her co-defendant of second degree murder.

7. Evidence - Self-Serving Declaration

Out-of-court statement by co-defendant in murder trial, exculpatory as to herself and tending to accuse her co-defendant, was a self-serving declaration and would not have been admissible in her own behalf.

8. Evidence - Hearsay - Statements Exonerating Others

An out-of-court confession by a defendant, exonerating a co-defendant, is inadmissible hearsay.

9. Appeal and Error - Evidentiary Error - Admission of Evidence

If erroneous admission of evidence is highly prejudicial to an accused, it will be deemed to be "inconsistent with substantial justice" and warrant disturbing a judgment. (6 T.T.C. § 351)

10. Appeal and Error - Prejudicial Error

Error alone is not sufficient to warrant disturbing a judgment; prejudicial harm must be shown.

11. Homicide - Presumptions - Guilt

Presumption that accused was guilty of a criminal offense arose from his false statement that homicide victim accidently drowned, together with fact body was found a few days later, concealed, death having been caused by a gunshot wound in the back of the head.

12. Homicide - Murder in Second Degree - Presumption of Guilt

Although presumption of guilt of some offense arose where defendant on trial for first degree murder had made out false affidavit regarding victim's death, there was no evidence proving how the death occurred, and it could not reasonably be said that presumption of guilt presumed defendant guilty of the second degree murder of which he was found guilty.

13. Homicide - Murder in Second Degree - Malice

A conviction of second degree murder requires a finding that the killing was malicious as well as unlawful and wilfull.

14. Homicide - Murder Generally - Malice

The malice necessary to a murder conviction is merely an inference from the facts surrounding the killing.

15. Homicide - Murder Generally - Burden of Proof

The rule that a murder conviction cannot be had unless guilt is proven beyond a reasonable doubt applies to the whole and every material part of the case, including the act and manner of the killing, the reason for it and its commission.

16. Homicide - Murder in Second Degree - Evidence Held Insufficient

Second degree murder conviction could not stand where the evidence did not show, or warrant the inference, that appellant fired fatal shot.

17. Homicide - Murder in Second Degree - Hearsay

In trial resulting in second degree murder conviction, it was error for court to rely on out-of-court exculpatory statements, admissible only for impeachment purposes, for the necessary substantive evidence of the elements of the crime.

18. Criminal Law - Burden of Proof - Reasonable Doubt

Where evidence is exclusively circumstantial, rule that proof of guilt of a crime must be established beyond a reasonable doubt should be applied more stringently.

19. Constitutional Law - Self-Incrimination

The privilege against self-incrimination renders a defendant's silence and refusal to take the stand neutral in effect with respect to the judgment of the trier of fact.

Before TURNER, Associate Justice, BROWN, Associate Justice, BENSON, Temporary Judge

BROWN, Associate Justice

The appellant, Charles P. Miller, was tried by the Trial Division of the High Court in Truk District on an information charging him with murder in the first degree, was found not guilty of murder in the first degree, was convicted of murder in the second degree, a lesser included offense, was sentenced to imprisonment for a term of twenty years, and has appealed.