24 Haw. 565 | Haw. | 1918
OPINION OP THE COURT BY
The defendant-appellant was indicted, tried and convicted in the circuit court of the second judicial circuit for the crime of gross cheat. The indictment charges that “Sam Pupuhi at Kokomo in the County of Maui, Territory of Hawaii, on to-wit the 10th to the 19th day of April, 1916, inclusive, did designedly, by false pretenses, and with intent to defraud, obtain from others, to wit, Joe Boteilho, John de Costa, Antone S. Madeira and Joe Antone Rodrigues, money of the amount and value to wit twenty-five hundred dollars.” To this indictment the defendant demurred on the ground that “the indictment did not contain allegations sufficient to constitute a valid charge of any criminal offense by the defendant or a violation by defendant of any penal statute of the Territory.” The demurrer was overruled by the court and an exception to this ruling was duly taken by the defendant.
The defendant comes to this court by a bill of exceptions which contains several additional exceptions to the one hereinabove specified. We deem it necessary, however, to discuss only the single exception taken to the ruling of the court upon the demurrer to the indictment. Section 3988 R. L. 1915 defines the offense of gross cheat as follows: “Whoever shall designedly, by any false pretense, and with intent to defraud, obtain from another any money, goods, or other thing of value, is guilty of gross cheat.”
The defendant questions the sufficiency of the indictment because of the absence in the indictment of any words descriptive of the false pretenses by which the defendant is alleged to have obtained the money from the
Counsel for the Territory calls attention to the fact that the indictment charges the defendant with the crime of gross cheat in the words of the statute defining the offense and maintains that this is sufficient. He cites in support of his position the opinions of this court in Territory v. Ah Cheong, 21 Haw. 10, and Republic v. Ah Cheon, 10 Haw. 469. In the latter case cited we find the following paragraph: “There are no common law offenses known to our law, all are statutory and a charge of an offense made substantially in accordance Avith the language of the penal statute is good and sufficient.” We think the expression Avas properly used if confined to the case then under consideration but if the intention of the court was to hold that every offense contained in the penal statutes of the Territory may be properly charged by a mere repetition of the language of the statute defining the offense Ave confess our unwillingness to concur therein. It is true, as held in Territory v. Ah Cheong, 21 Haw. 10, that where the statute fully defines the offense in clear and unmistakable terms a charge in the language of the statute is sufficient. There are some statutes in our criminal laAvs which so clearly and specifically define the offense that nothing more is required in the indictment than to adopt the language of the statute but we do not find that the statute of gross cheat, that is, section 3988 R. L. 1915, contains those descriptive elements which would bring it within the category of the statutes just mentioned. This statute is a generic description grouping within its scope a multitude of things the doing of any of which might constitute the crime. “The general rule that an indictment
In the present case the charging part of the indictment is confined to a bare repetition of the words of the statute. In the most general terms that could possibly be employed the defendant is accused of false pretenses. What the alleged false pretenses consisted of — whether they, in fact, were sufficient in contemplation of law to constitute a crime within the statute — it is impossible to determine. “It is not sufficient merely to aver in the indictment that the accused obtained the property by false pretenses. The pleader must go further and not only set out the pretense but set it out with such particularity as to enable the court to determine whether it is such a pretense as comes within the statute and as to apprise the accused of the charge against him.” 19 Cyc. 423. A case peculiarly parallel to the one now before us is People v. McKenna, 81 Cal. 158. There the defendant was tried and convicted on an information which charged that “on or about the fifteenth day of July, 1888, in the County of San Louis Obispo, State of California, the defendant did unlawfully, knowingly
The court below should have sustained the demurrer to the indictment and the exception of the defendant to the refusal of the court to do so is sustained.