34 Haw. 75 | Haw. | 1937
On October 11, 1935, the public prosecutor of the City and County of Honolulu filed in the first circuit court an information charging the appellant and two others with the offense of conspiracy in the third degree. To the information appellant filed a plea of former jeopardy alleging in substance that on September 20 preceding, after trial before a magistrate of the district of Honolulu, he had been acquitted upon a similar charge. The offense of conspiracy in the third degree is a misdemeanor and within the criminal jurisdiction of district magistrates. It is also within the criminal jurisdiction of circuit courts. The plea was overruled by the court and its ruling thereon is assigned as error. Upon trial the appellant was convicted of the offense charged in the information.
An indispensable prerequisite to the prosecution of the appellant in the district court for the offense of conspiracy *76
in the third degree was a criminal complaint or charge charging him with that offense. (Prell v. M'Donald,
It has long since been decided by this court that the complaint referred to in section 5470, R.L. 1935, is not the charge upon which a defendant is tried in the district court; that "the sole function of the complaint, as provided for by [that] section * * * is to support the issuance of the warrant or, in other words, to enable the magistrate to determine whether or not there is probable cause to believe that an offense has been committed by the accused so as to justify his apprehension;" that "thecomplaint referred to in that section is not the charge upon which the defendant is tried, although it is a statement in substance, and may also be in exact language, of the offense to be set forth in the charge subsequently entered against the defendant in Court;" and that "the charge itself is, under the practice [then] prevailing in the District Courts, entered orally by the prosecuting officer upon the defendant's appearance and noted by the magistrate in his record, and it is upon the charge as thus entered that the trial is had." Ter. of Hawaii v. SingKee,
The finding that no charge was entered against the appellant in the district court not alone finds support in the oral evidence of the attaches of that court but also in the official record of the magistrate. The law presumes that officials perform their statutory duties and it is reasonable to assume that those upon whom section 3774, R.L. 1935, imposes the duty to "preserve in written detail the minutes and proceedings of their trials, transactions, and judgments, *78 with the substance of the testimony and the facts upon which their decisions rest" properly perform their duty. Hence the presumption, that if a charge had been entered against the defendant the record of the magistrate would disclose it. A laxity characterized the proceedings in the district court which even the informality of the practice in that court does not excuse. But upon the state of the record in the instant case the finding of the circuit court upon the plea of former jeopardy may not be disturbed.
Under the circumstances the district magistrate never had jurisdiction of any criminal proceedings against the appellant of any offense or of the offense of which appellant claims to have been acquitted after trial. In the absence of a formal charge the proceedings in the district court were a nullity. (Ex parteBain,
The errors assigned are overruled and the judgment affirmed.