11 Haw. 143 | Haw. | 1897
OPINION OF THE COURT BY
The plaintiffs herein and one other person were brought before the District Court on a charge, as stated in the warrant of arrest, of “conspiracy, to wit, the violation of Section 1, Chapter 28 of the Penal Code.” This charge was made more specific in court by averments which, in substance, charged a conspiracy to accuse and prosecute one Chong Fook with the offense of maintaining a lottery in violation of Section 1, Chapter 21, Prov. Gov’t Laws. The Magistrate’s notes contain this entry: “Demurrer to charge as amended, that facts therein stated, do
Section 1, Chapter 28, Penal Code, defines conspiracy. By Section 9, conspiracy to do certain things, one of which is “to charge any one with felony,” “is in the first degree.” By Section 10, “conspiracy not appearing to be in the first degree, is in the second,” etc. This Section 10 is amended by Chapter 102, Laws of 1892, so- as to read: “A conspiracy to establish, create, manage or conduct a trust or monopoly in the purchase and sale of any commodity is in the second degree,” etc., and a new section is added as follows: “Section 11. Conspiracy not appearing to be in the first and second degrees, is in the third degree,” etc. Maintaining a lottery is only a misdemeanor.
The specific charge did not set forth a conspiracy in the first degree. The words “in the 2nd degree” were added apparently through an oversight that Section 10, Chapter 28, of the Penal Code, had been amended, or rather that a new section of different substance had been substituted for it and that the substance of the old section (10) had b'een put in a new section (11) making in the third degree most of what had previously been in the second degree.
The specific averments are sufficient to charge conspiracy in the third degree. The evidence is sufficient to sustain those averments and to support a finding of guilty in the third degree. The sentence is within the limit prescribed for the third degree. See Re Hoopai, 10 Haw. 613. The Magistrate found the plaintiffs herein “guilty” without specifying the degree. This means that he found them guilty as charged. What was charged? The charge contains certain averments and then calls the offense therein set forth conspiracy in the second degree, although the averments made and proved show a conspiracy in the third degree only. It is well settled that the giving of a wrong name to the offense charged does not vitiate the charge. The wrong
It is unnecessary to consider whether if the charge were such as to authorize a finding of guilt in any one of several degrees the presumption from a general finding of “guilty” would be in favor of the highest or the lowest degree. See King v. Cornwell, 3 Haw. 154.
The writ is dismissed.