10 Haw. 114 | Haw. | 1895
OPINION OP THE COURT BY
At the trial of this case at the last term of the Circuit Court, Second Circuit, a plea to the jurisdiction was made, that the offense' charged was a misdemeanor, it not being punishable by imprisonment for more than two years. Section 2 of Chap. 1 of the Penal Code defines a felony to be an offense “punishable with death or imprisonment for a longer period than two years or by the forfeiture of any civil or political right, and also larceny.” “Any offense not appearing to be a felony or crime is a misdemeanor.” Act 25 of the Executive and Advisory Councils of the Provisional Government conferred jurisdiction, subject to appeal, upon all District Magistrates, to hear and determine all cases of misdemeanors arising within their respective districts.
This case was brought to the Circuit Court upon examination and indictment and not by appeal from a District Magistrate.
The offense charged is that described in Section 16, Chapter 29 of the Penal Code, whose title is “Obstructing and perverting the course of justice.” It is punishable in the statute by imprisonment at hard labor not more than two years, or by fine not exceeding five hundred dollars. So far forth, then, it is a misdemeanor and not a felony. But a felony is also an offense punishable by forfeiture of civil or political rights. Article 44 of the Constitution of the Bepublic deprives of the right to vote or hold office under the government those who in due course of law shall have been convicted of larceny, bribery, gross cheat, &c. But it is urged that the chapter and section under which this indictment is framed does not name the offense there described as “bribery.” It does, however, describe an offense which is answerable to the definition of “bribery,” to wit, in the case before us, the corruptly giving
The defendant demurred to the indictment on the ground “that the averment stating tie offense is uncertain, ambiguous and unintelligible and does not set out any offense under any statute enacted within the Hawaiian Islands.”
The indictment reads (after stating the office of Mr. Dickey) that the defendant did give, &c., — “a gift and gratuity to wit: the sum of twenty dollars with intent thereby to influence his, the said O. W. Dickey’s, acts as such Deputy Sheriff and executive officer in a proceeding and matter then pending mid which might In/ law come or he brought before him as such Deputy Sheriff and executive officer, contrary to the form of the statute,” &c.
The proceeding or matter should be described. The Court should be apprised of the nature of the matter in reference to which the acts of the officer were intended to be influenced by the bribe. The acts to be criminal should be of a nature to pervert or obstruct the course of justice if the officer was influenced by the bribe. The indictment should have set them out, for if they were not to accomplish a corrupt purpose it would not be criminal to give a gratuity to influence the officer to do them or to refrain from doing them. The words of the statute have been followed in the indictment, but they are general words and require a fuller statement of the nature of the purpose which the bribe was intended to subserve.
If this were done, all the particulars would appear; whether the object of the bribe was to secure immunity for a past offense or to allow violations of law in the future — whether the matter was pending or one which might come before the officer.
It is made clear from the evidence in the case that the object of the bribe was to secure immunity from arrest of a certain Chinese for selling opium and of others for smoking opium on his premises. This being a matter necessarily required to be proved it should have been averred in the indictment, and it
The trial Court did not have the advantage of full argument on this point. "We are not sure that this exact point was made before it, so that the indictment could be ordered to be amended. But it seems to us to be fairly covered by the demurrer interposed, and we feel obliged to hold the indictment was demurrable. We order the verdict set aside, the amendment to be made and a new trial to be had.
