Territory v. Belliveau
| Decision Date | 12 December 1916 |
| Docket Number | No. 977.,977. |
| Citation | 23 Haw. 546 |
| Parties | TERRITORY v. THERESA O. K. W. BELLIVEAU, ROBERT W. WILCOX AND Y. AHIN. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HEREMOTION TO DISMISS.
Syllabus by the Court
A writ of error at the instance of the Territory, under R. L. 1915, Sec. 2520, will not lie in a case where a demurrer to an indictment was sustained on the ground that the indictment was defective merely upon principles of criminal pleading.
Statutes relating to the form and sufficiency of indictments are not statutes “upon which the indictment is founded” within the meaning of R. L. 1915, Sec. 2520.
J. T. DeBolt for the motion.
W. T. Carden, Second Deputy City and County Attorney, contra.
There was an indictment charging the defendants with having committed the offense of conspiracy in the first degree, to which the defendants interposed a demurrer. The circuit court sustained the demurrer, whereupon the Territory obtained a writ of error under Sec. 2520, R. L. 1915. The defendants have filed a motion to dismiss the writ on the ground that this court is without jurisdiction in the matter since the decision of the circuit court involved only the application of the rules of criminal pleading and was not based upon the invalidity or construction of the statute upon which the indictment was founded within the meaning of section 2520.
It was alleged in the indictment that the defendants “did unlawfully, maliciously, fraudulently, knowingly and feloniously combine, mutually undertake and conspire together to do what is and was obviously and directly wrongfully injurious to another, to wit, knowingly, fraudulently, deceitfully and with intent to defraud by false and fraudulent pretenses to obtain the signature of one Solomon K. Kauai to a certain written instrument, to wit, a deed of certain rights, title and interest of the said Solomon K. Kauai in and to certain lands, tenements, hereditaments and fishing rights, situate, lying and being in the city and county of Honolulu, Territory of Hawaii, and in and to lands and waters situate in, adjacent to and within the jurisdiction of said city and county of Honolulu, Territory of Hawaii, the false making of which said written instrument would be punishable as forgery, the said rights, title and interest of the said Solomon K. Kauai, in and to the said lands, tenements and hereditaments and rights, being of the value and worth of more than the sum of Two Hundred Dollars ($200.00), and did then and there and thereby commit the crime of conspiracy in the first degree, contrary to the form of the statute in such case made and provided.”
Conspiracy is defined as “a malicious or fraudulent combination or mutual undertaking or concerting together of two or more, to commit any offense or instigate any one thereto, or charge any one therewith; or to do what plainly and directly tends to excite or occasion offense, or what is obviously and directly wrongfully injurious to another.” R. L. 1915, Sec. 4076. A conspiracy to forge, counterfeit or cheat to an amount exceeding one hundred dollars is in the first degree. R. L. 1915, Sec. 4084. Section 3989 provides that “Whoever shall, by any false pretense, and with intent to defraud, obtain the signature of any person to any written instrument, the false making whereof would be punishable as forgery, is guilty of gross cheat.” The indictment purported to charge conspiracy to commit gross cheat.
The demurrer was based on the grounds that (1) the indictment does not state facts sufficient to constitute the crime of conspiracy in the first degree, or any other offense, and (2) the indictment is ambiguous and uncertain in that it does not allege with sufficient legal precision that Solomon K. Kauai was the owner of the lands mentioned in the indictment, and that the lands are not described or identified. The court below held that the party whom the defendants conspired to injure and defraud should have been named in the indictment, also that the pretenses used and their false and fraudulent character should have been set forth, and sustained the demurrer evidently on the first ground though the opinion does not expressly so state. The question is a rather close one whether the ruling was the mere application of general principles of criminal pleading, or...
To continue reading
Request your trial