Territory Hawai`i v. Henriques

• Decision Date: 05 March 1912
• Citation: 21 Haw. 50
• Parties: TERRITORY OF HAWAII v. J. G. HENRIQUES.
• Court: Hawaii Supreme Court

21 Haw. 50

TERRITORY OF HAWAII

v.J. G. HENRIQUES.

Supreme Court of the Territory of Hawai‘i.

Submitted February 26, 1912.

Decided March 5, 1912.

OPINION TEXT STARTS HEREEXCEPTIONS FROM CIRCUIT COURT, THIRD CIRCUIT.

Syllabus by the Court

An information, which charges that defendant did, during a certain period, continually, wilfully and unlawfully turn loose, and continually, wilfully, unlawfully and knowingly permit, “certain dairy cattle” to go abroad, roam about, lie about, graze and assemble together in and upon a certain public highway, thereby obstructing, hindering and disturbing the lawful use thereof, and endangering the safety of the public, is fatally defective, in that it does not show that defendant was the owner of or had control over the cattle referred to.

E. W. Sutton, Deputy Attorney General, for the Territory.

C. W. Ashford for defendant.

ROBERTSON, C.J., PERRY AND DE BOLT, JJ.

OPINION OF THE COURT BY DE BOLT, J.

At the April, 1911, term of the circuit court of the third circuit, the deputy county attorney of the County of Hawaii, William H. Heen, presented by way of information that one J. G. Henriques, the defendant, at Kealakekua, in the county and circuit aforesaid, “for and during the period of eighteen months next preceding the 23rd day of April, A. D. 1911, did continue and maintain the offense of common nuisance in that he, the said J. G. Henriques, did at and during the period aforesaid continually, wilfully and unlawfully turn loose and continually, wilfully, unlawfully and knowingly permit certain dairy cattle to go abroad, roam about, lie about, graze and assemble together in and upon the public highway at said Kealakekua, which said public highway runs and lies immediately in front of the residences there situate of one W. J. Yates, of the said J. G. Henriques, of one R. Wallace and of one E. E. Conant, respectively, thereby obstructing the said public highway and hindering and disturbing the lawful use thereof and thereby endangering the safety of the public, to the damage, annoyance and vexation of all persons then and there being and then and there lawfully using the said public highway, contrary to the form of the statute in such cases made and provided.”

The defendant demurred to the information on the grounds that it did “not contain allegations sufficient to constitute a valid charge of any criminal offense by this defendant, or the violation by defendant of any penal statute of the Territory of Hawaii, or of any ordinance of the county of Hawaii.” The demurrer being overruled the defendant excepted, and thereupon he pleaded “not guilty” and went to trial. Considerable evidence was adduced by the prosecution, but none on behalf of the defendant. The jury returned a verdict, finding the defendant guilty of common nuisance in the first degree. The court sentenced the defendant to pay a fine of $100 and costs.

The information is based upon section 3130 of the Revised Laws, which, omitting the examples therein given, reads: “The offense of common nuisance is the endangering of the public personal safety or health, or doing, causing or promoting, maintaining or continuing what is offensive, or annoying and vexatious, or plainly hurtful to the public, or is a public outrage against common decency or common morality, or tends plainly and directly to the corruption of the morals, honesty and good habits of the people, the same being without authority or justification by law.”

The defendant brings the case to this court upon eighteen exceptions, but in the view we take of the exception to the order of the court in overruling the demurrer to the information it will not be necessary to consider the other exceptions.

The demurrer challenges...