33 Haw. 686 | Haw. | 1936
On October 31, 1935, an indictment was returned against the defendant charging him in each of the two counts thereof with the offense of murder in the second degree. He interposed a demurrer to the indictment which the trial court reserved for the consideration of this court upon the single question of whether the demurrer to the indictment should be sustained. *687
The demurrer raises but two questions, i.e. (1), whether the words "without authority, justification or extenuation by law" contained in the statutory definition of murder may be alleged in an indictment charging the offense of murder in the second degree in the conjunctive, that is, as in the instant case, "without authority and without justification and without extenuation by law" and, if not (2), whether under the provisions of R.L.H. 1935, § 5501, the excusatory words of the statute need be alleged at all, and the allegation as made, under the provisions of R.L.H. 1935, § 5505, rejected as surplusage.
Murder is defined in the statute as "* * * the killing of any human being with malice aforethought, without authority, justification or extenuation by law * * *." R.L.H. 1935, § 5990. It is of two degrees but the distinguishing features of each are immaterial to a consideration of the question reserved.
As a general rule where an exception or proviso contained in a statute defining an offense is a matter of definition separable from the description of the offense and not an ingredient thereof, the same need not be negatived in charging the offense.The King v. Hulu,
The exception "without authority, justification or extenuation by law" is common to the statutory definitions of both murder and manslaughter and this court in effect has held that in the statutory definition of manslaughter *688
the exception forms a portion of the description of that offense.Territory v. Braly,
Whether or not it is necessary in an indictment for murder to negative the exceptions contained in the statute creating and defining the offense of murder and whether the allegations of the exceptions in the conjunctive as contained in the indictment may be considered unnecessary and rejected as surplusage, we deem unnecessary to determine.
The reserved question is therefore answered in the negative.