40 Haw. 331 (Haw.Terr. 1953), 2942, Territory of Hawaii v. Nihipali

Docket Nº:2942.
Citation:40 Haw. 331
Opinion Judge:STAINBACK, J.
Party Name:TERRITORY OF HAWAII v. WALTER NIHIPALI.
Attorney:J. R. Desha II, Assistant Public Prosecutor (also on the briefs), for plaintiff in error. J. A. King ( Bouslog & Symonds with him on the brief) for defendant in error.
Judge Panel:TOWSE, C. J., LE BARON AND STAINBACK, JJ.
Case Date:September 14, 1953
Court:Supreme Court of Hawai'i
 
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Page 331

40 Haw. 331 (Haw.Terr. 1953)

TERRITORY OF HAWAII

v.

WALTER NIHIPALI.

No. 2942.

Supreme Court of Territory of Hawai'i.

September 14, 1953

Argued September 10, 1953.

ERROR TO CIRCUIT COURT FIRST CIRCUIT, HON. C. H. BUCK, JUDGE.

Syllabus by the Court

A conviction for an offense which is a necessary element in and constitutes a part of another offense is a bar to subsequent prosecution for the latter offense if founded upon the same act.

Where a new fact intervenes after the first prosecution for which the defendant is responsible which changes the character of the offense, the defense of former jeopardy does not apply.

Where a person is convicted of heedless and reckless driving and subsequent thereto a person injured by such negligent driving dies, a charge of negligent homicide arising out of the same transaction does not create double jeopardy since a person cannot be put in jeopardy for the offense of homicide prior to the death of the person upon whom the crime was committed.

A writ of error brings up the whole record and the purpose of the assignments of error is to apprise the defendant in error and the court of the issues of law sought to be presented for determination.

J. R. Desha II, Assistant Public Prosecutor (also on the briefs), for plaintiff in error.

J. A. King ( Bouslog & Symonds with him on the brief) for defendant in error.

TOWSE, C. J., LE BARON AND STAINBACK, JJ.

OPINION

STAINBACK, J.

The defendant, Walter Nihipali, was indicted by the territorial grand jury on August 9, 1951, for the offense of negligent homicide, the indictment being in substance that on June 24, 1951, the defendant operated a motor vehicle so carelessly and negligently as to cause the vehicle to go off the road, collide with an electric pole and turn over, thereby causing one Charles Kaahu, a passenger in the motor vehicle, to receive injuries from which he died on July 18, 1951.

When defendant was arraigned on August 24, 1951, he entered a plea in bar. The plea in bar states that the defendant, Walter Nihipali, was convicted in the district court at Koolauloa on June 27, 1951, for violating section 11701, Revised Laws of Hawaii 1945, in that on June 24, 1951, he operated a motor vehicle on Kamehameha highway carelessly and heedlessly of the rights and safety of others. The plea further states that the defendant was sentenced in the district court to pay a fine of $25 and have his operator's license suspended for a period of 60 days between the hours of 1:00 o'clock p. m. and 3:00 o'clock a. m.

At the hearing it was stipulated that the charge of careless and heedless...

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