27 Haw. 253 | Haw. | 1923
OPINION OP THE COURT BY
In the district court of Makawao, County of Maui, a charge was entered against the defendant (the present plaintiff in error) to the effect that he did at a time and place stated “unlawfully and feloniously steal, take and carry away certain property, to wit, one Jersey heifer of the value of $40.00 (Forty Dollars), the property of one Joe Ferreira, then and there and thereby committing the offense of larceny in the second degree contrary to the provisions of Chapter 227 of the Revised Laws of Hawaii,
In his instructions to the jury the presiding judge gave the statutory definition of embezzlement and instructed the jury that “under the laws of the Territory of Hawaii if upon the trial of any person informed against or indicted for larceny it shall be proved that he took the property in question in any such manner as to amount in law to embezzlement he shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such person is not guilty of larceny but is. guilty of embezzlement in such degree as the facts proved may warrant.” This instruction was a statement of the law as laid down in section 3828.
The question noAV before us has not been decided in this jurisdiction. The decisions in other American jurisdictions are in conflict, under statutes' substantially to the same effect as ours. We think that the better reasoning is in favor of the view that such a statute as this is unconstitutional. Article VI of the amendments to the Constitution of the United States provides that “in all
One of the arguments advanced by those courts holding that such a provision as that now under consideration is constitutional is that the two offenses are sufficiently similar in their nature that an indictment charging one sufficiently notifies an accused that the other offense is also charged. With this, for the reasons above stated, we cannot agree. Another argument advanced by the same courts is that the statute provides that when an accused is charged with larceny it shall be possible if the evidence adduced proves the essentials of embezzlement to convict him of the latter offense and that every defendant is presumed to know the law and therefore is informed by an indictment for larceny of the possibility of a conviction for embezzlement. The answer to this is that when the constitutional provision requires that an accused be “informed of the nature and cause of the accusation” it contemplates that he shall be so informed by the indictment in the particular case and not by a general statute or statutes applicable to all cases in a class. State v. Dougherty, 4 Or. 200, 204. The presumption of a knowledge of the law does not apply so as to enlarge the effect of the indictment. Otherwise it would suffice to notify an accused of the general name of the offense with which it is intended to charge him and then leave him to search the law books to ascertain what all of the possible essential ingredients
In each of the following cases the court was of the opinion that a statute similar to ours was unconstitutional: Howland v. State, 32 Atl. (N. J.) 257, 258; State v. Harmon, supra; State v. Burks, supra; and Huntsman v. State, supra. See also Conner v. Com., 76 Ky. 714; Com. v. Simpson, 9 Metc. (Mass.) 138; and 10 A. & E. Ency. L. 982, 983.
The judgment and the sentence are set aside. The defendant, having been found by the jury not guilty of larceny, is hereby ordered discharged.