23 Haw. 714 | Haw. | 1917
OPINION OP THE COURT BY
The defendant was tried in the district court of Maka-wao in the second judicial circuit upon the charge of stealing 246 pounds of pineapples alleged to be the property of the Maui Agricultural Company, a partnership, entered a plea of not guilty, and was convicted. From the judgment of conviction he has appealed to this court upon a point of law stated in the magistrate’s certificate of appeal as follows: “That there is no evidence whatever to warrant a conviction of the defendant of the crime charged.” The form and sufficiency of the statement of the point of law upon which the appeal is based is not questioned by the prosecution, but it is contended by the learned county attorney that the point of law stated should not be con
“Sec. 3924. Owner unknown. It is not necessary, in respect to larceny, that it should appear whose property, other than the taker’s, the thing is;, it is enough that it appear*717 that it is not the taker’s, and that it does not appear to be derelict; and in case of doubt whether a thing is derelict, the presumption is that it is not so.”
This statute was intended to relate to cases where the owner of stolen property is unknown and does not apply to a case where the owner of the property is known. Every material allegation in an indictment or information or charge against a defendant in a criminal case must be proven as alleged (Territory v. Lau Hoon, ante p. 616). The ownership of property alleged to have been stolen is a material fact (25 Cyc. 88) and when alleged must be proved as alleged. “Ownership must be proved by sufficient evidence or the conviction cannot be supported. Where the owner is alleged in the indictment as unknown, there can be no conviction unless it is proved that the grand jury did not know his name and could not discover it by due diligence, as by showing that the cattle stolen were estrays. So evidence that a certain person lost cattle like those stolen will not justify a verdict for stealing cattle of a person unknown” (25 Cyc. 125).
The evidence here faffing to show that the property alleged to have been stolen was the property of the Maui Agricultural Company, but there being some evidence to show that it belonged to other parties there was a variance between allegation and proof and no evidence to show that the defendant committed the offense stated in the charge against him.
The judgment of the district court is'reversed, a new trial is granted to the defendant and the cause is remanded for further proceedings consistent with the views expressed herein.