State v. Nobuhara , 52 Haw. 319 ( 1970 )

474 P.2d 707 (1970)

STATE of Hawaii, Plaintiff-Appellee,
v.
Roy R. NOBUHARA, Joseph O. Bush, Jr., Thomas Yukio Katayama, and Charles Saburo Funakoshi, Defendants-Appellants.

No. 4943.

Supreme Court of Hawaii.

September 25, 1970.

Francis T. De Mello, Honolulu, for defendants-appellants.

Erick T.S. Moon, Deputy Pros. Atty., City and County of Honolulu (Barry Chung, Pros. Atty., with him on the brief) for plaintiff-appellee.

Before RICHARDSON, C.J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

PER CURIAM.

Defendants Joseph Bush, Charles Funakoshi, Thomas Katayama and Roy Nobuhura were arrested by the police at the Honolulu Stadium at the end of the Punahou-McKinley football game, and were charged in the Honolulu district court for betting on the game, in violation of HRS § 746-8, which proscribes betting on any athletic contest.

At the time of the arrest, the police seized $15,678.24 from defendants, as follows:

Bush                              $   968.00
Of this sum, $650.00 was
in 7 small envelopes admitted
in evidence as Exhibits
2A through 2G
Funakoshi                             141.23
Katayama                           12,104.01
Nobuhara                           2,465.00
Of this sum $250.00 was
in 5 small envelopes
admitted in evidence as Exhibits
8B1 through 8B5 and
$1,340.00 was in a large
envelope admitted in evidence
as Exhibit 8E                 __________
$15,678.24
==========

In the district court, defendants demanded a jury trial. They were therefore committed to the first circuit court. However, in the circuit court, they consented to trial without a jury, and were found guilty as charged.

The circuit court imposed on each of them a fine of $100.00, but suspended the sentence for 12 months. Also, as to each of them, the court forfeited to the City and County of Honolulu the amount seized, as stated above, pursuant to HRS § 746-12, which provides for forfeiture of all moneys used in betting in violation of HRS § 746-8.

Defendants do not seriously contest in this court the validity of their convictions. Their principal object on this appeal is to recover the money as to which they claim there is no evidence of use in the betting for which they were convicted. They concede that the evidence adduced at the trial sustains forfeiture of $650.00 in Exhibits 2A through 2G, $250.00 in Exhibits 8B1 through 8B5, and $1,340.00 in Exhibit 8E.

We agree with defendants that the prosecution adduced absolutely no evidence to tie in the moneys not in the exhibits listed in the preceding paragraphs with their betting activities. Consequently, the circuit court erred in forfeiting the moneys not so tied in.

The judgments appealed from are affirmed insofar as they adjudge defendants guilty of violating HRS § 746-8 and impose sentences upon such violations. They are reversed insofar as they forfeit moneys other than moneys in Exhibits 2A through 2G, 8B1 through 8B5, and 8E.