9 Haw. 131 | Haw. | 1893
Opinion of the Court, by
This is an appeal from Judge Whiting of the Circuit Court, First Circuit, refusing to discharge the petitioner from the custody of the Marshal, the case, in his opinion, disclosing errors not cognizable on habeas corpus. Tbe petition sets forth that petitioner was, at tbe March Term of tbe Circuit Court, Fifth Circuit, sentenced to pay a fine of $25 and be imprisoned at bard labor for tbe term of two years for tbe offense of assault with a dangerous weapon. Tbe mittimus under which tbe petitioner is held describes tbe offense an “ assault with a dangerous weapon.” Tbe petition avers that bis imprisonment and restraint are illegal because there is no such offense known to our law. Tbe return by tbe Marshal to tbe writ is that tbe petitioner was convicted before tbe said Circuit Court “for that, being armed with a dangerous weapon, to wit, a loaded pistol, be did assault certain persons (naming them) with intent to kill and murder,” etc. Tbe
The clerk entered upon Ms- minutes- that fee verdiet was w guilty as- charged.”
The first question to be considered is, which is the verdict? —that presented by the Jury, or as entered by the clerk 2? We have no hesitation in holding feat the former must be considered as the verdict. By our present practice the-verdict is written, handed by the foreman of the Jury to- the Court, who- reads- it aloud to them and asks if they assent to it. This- is- a public- act, and it is- required by our statutes that the Jury shall find a verdict. It need not be in writing, but the present practice so- requiring it is proper and not inconsistent with the law. The entry of the verdict by the slerk as understood by Mm is but his- private interpretation of fee meaning ©£ the verdict, and cannot be held to contradict the written verdict passed up by the foreman. It might be otherwise- if the verdict was- oral, recorded by the clerk and then read by him from Ms minutes- to- the jury and assented to by them.
We pass now to the next question. Does this verdict disclose an offense known to the law ? The defendant was indicted for an offense described in Section 5 of Chapter IX. of fee Penal Code, to- wit, an assault by a person armed witb a dangerous weapon upon another “ wife intent to commit burglary, robbery, manslaughter or murder,, or other crime of such character.”
The verdict of the jury found fee- defendant guilty of an* K assault with a weapon dangerous to life.” It leaves out fee- essential ingredient of the offense — the intent to- commit fee- crime, which- in this ease was-, as by the indictment, murder.. The verdict was-a special one, undertaking, to describe-
In the- ease before us the record corresponds with themittimus, and as both are illegal the petitioner is entitled to-his discharge. We wish to add- that we do not hold that if a person is charged under Section 5 of the Chapter on assaults (Chap. 9 Penal Code) the jury would be warranted in finding him guilty of the offense described in Section 8, as it does, not appear to us that these are different degrees of the same offense,, bub substantially different offenses. In the assault under Section 5, the intent to commit a greater crime is an essential ingredient. Under Section 8, the character of the instrument with whieh the assault is made is essential, and the intent with which the assault is made is not essential.
Let the prisoner be discharged.