Territory v. Pil
| Decision Date | 24 January 1923 |
| Docket Number | No. 1407.,1407. |
| Citation | 26 Haw. 725 |
| Parties | TERRITORY v. KIM UNG PIL. |
| Court | Hawaii Supreme Court |
OPINION TEXT STARTS HERE
ERROR TO CIRCUIT COURT FIRST CIRCUIT. HON. J. J. BANKS, JUDGE.
(Peters, C. J., dissenting.)
Syllabus by the Court
The use of the disjunctive “or” in an indictment for robbery, in charging that the taking was “from the person or from the custody and in the presence” of the person robbed, does not render the indictment bad.
When the two alternative words or expressions are synonymous, the use of the disjunctive “or” does not vitiate the indictment.
In legal contemplation a taking of property from the custody and in the presence of the person robbed is a taking from the person.
An indictment for robbery which alleges that the taking was “without the consent and against the will” of the person robbed and that the defendant “feloniously and by force and violence did rob, steal, take and carry away” the property, sufficiently charges a taking with intent to steal.
An indictment for robbery which alleges that the defendant was armed with a revolver “with intent, if resisted, to kill or maim or wound or inflict other corporal injury upon” the person robbed and that, being so armed, the defendant “did make an assault and the said” defendant “in bodily fear and danger of his life then and there did put,” sufficiently charges that the force was used to put in fear and to overcome resistance if necessary.
C. S. Davis ( R. J. O'Brien and Brown, Cristy & Davis on the brief) for plaintiff in error.
H. E. Stafford, First Deputy City and County Attorney ( W. H. Heen, City and County Attorney, with him on the brief), for the Territory.
The plaintiff in error was tried, convicted and sentenced under an indictment reading as follows, omitting the formal parts: “The grand jury of the first judicial circuit of the Territory of Hawaii do present that Kim Ung Pil at the City and County of Honolulu, Territory of Hawaii, and within the jurisdiction of this honorable court, on the 19th day of July, 1921, with force and arms, in and upon one A. Oshira, then and there being, he, the said Kim Ung Pil, being then and there armed with a dangerous weapon, to wit, a revolver, with intent in him, the said Kim Ung Pil, if resisted, to kill or maim or wound or inflict other severe corporal injury upon the said A. Oshira, did make an assault and the said A. Oshira, in bodily fear and danger of his life, then and there did put, and certain moneys, to wit, One Hundred and Fifty-one Dollars ($151.), lawful money of the United States of America, a particular description of which is to the grand jurors unknown, of the moneys, chattels and property of the said A. Oshira, from the person or from the custody and in the presence and without the consent and against the will of the said A. Oshira, then and there feloniously and by force and violence did rob, steal, take and carry away, and did then and there and thereby commit the crime of robbery in the first degree.” The plaintiff in error, hereinafter called the defendant, brings the case to this court upon a writ of error setting forth a large number of assignments of error which, however, in varying words and forms contain three main assignments which may be briefly stated as follows: (1) that the indictment contains an alternative allegation and is for that reason defective and for the same reason sets forth no offense; (2) that it is not alleged in the indictment that the taking was with intent to steal; (3) that the indictment does not allege that the force was used or the fear excited to prevent or overcome resistance or to prevent or hinder the escape of the party robbed or to prevent the conveying away, securing or guarding the subject of the larceny from being taken or to induce the party robbed to surrender the same or to prevent detection of the crime.
Counsel's main reliance would seem to be placed upon the fact that one of the allegations is in the alternative. The allegation thus attacked is that the taking was “from the person or from the custody and in the presence” of the party robbed.
Section 3791D, R. L., as enacted by Section 1 of Act 215, Session Laws of 1915, provides that “In an indictment for an offense which is constituted of one or more of several acts or which may be committed by one or more of several means or with one or more of several intents or which may produce one or more of several results, two or more of such acts, means, intents or results may be charged in the alternative.” The prosecution justifies the allegation under consideration under the provision of the section just quoted and the defendant contends that the statute is unconstitutional. Whether or not the allegation in question is authorized by this section and whether or not, if it is so authorized, the section is unconstitutional, we need not consider–for upon another ground the allegation can and should be sustained. The argument of the defendant is, in brief, that an alternative or disjunctive allegation alleges nothing; that it is a mere statement of an uncertainty; that it does not inform the defendant of what it is that he is charged with; that it does not inform the defendant of the specifications of the charge against him; that an indictment “should descend to particulars;” and that the defendant is, under Article VI of the amendments to the Constitution, entitled “to be informed of the nature and cause of the accusation” against him. In connection with this argument, the defendant also refers to Article V of the amendments to the Constitution providing that “no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury,” contending that this latter provision means and presupposes an indictment which shall inform the accused of the nature and cause of the accusation. In no other respect is it contended by the defendant that Article V of the amendments to the Constitution is violated by this indictment; nor has it been suggested by any one in the argument or the consideration of this case that Article V has been violated except by the alleged failure of the indictment to inform the accused of the nature and the cause of the accusation against him.
The rule relied upon by the defendant concerning the use of the disjunctive “or” in indictments has been often and variously stated in the books. Its general purport is that “an indictment or criminal information which charges the person accused, in the disjunctive, with being guilty of one or of another of several offenses, would be destitute of the necessary certainty and would be wholly insufficient.” United States v. Clarke, 20 Wall. 92 (22 L. ed. 320). The reasons usually given for the rule are that such an indictment would not give the accused definite notice of the offense charged and thus enable him to defend himself and that neither a conviction nor an acquittal could be pleaded in bar to subsequent prosecution for one of the several offenses. Ib. The cases to this effect are undoubtedly numerous. But it has never been held that the mere presence of the disjunctive “or” in an indictment vitiates the indictment or that, in other words, any and every disjunctive allegation must necessarily be bad. Some disjunctive allegations are bad; others are not. Henderson v. State, 113 Ga. 1148. The exception, if it may be called that, is as well established as is the rule itself, that when the disjunctive merely connects two synonymous words or expressions, the allegation does not vitiate the indictment; and also that if the disjunctive is used with reference to immaterial matter the indictment is not injuriously affected.
“An indictment or information must not charge a party disjunctively or alternatively in such manner as to leave it uncertain what is relied on as the accusation against him; but where terms laid in the alternative are synonymous, the indictment is good.”22 Cyc. 296, 297.
“The reason for discarding the disjunctive and substituting the conjunctive, was, that using the alternative charge left the defendant in such doubt as to the nature of the offense which he was held to answer, that he could not intelligently prepare his defense * * *.
But upon the maxim, cessante ratione cessat et ipsa lex, the better rule seems now to be that ‘or’ is only fatal when the use of it renders the statement of the offense uncertain, and not so when one term is used only as explaining or illustrating the other. * * * Where it is manifest that the defendant cannot be embarrassed by uncertainty in preparing his defense by reason of the use of the disjunctive instead of the conjunctive, if the form ordinarily used in drawing the indictment should be treated as an established precedent essential in all cases, it would be an arbitrary and unreasonable rule.” State v. Van Doran, 109 N. C. 864, 866.
Under an indictment for murder charging that the deceased was struck “with a stone or an iron hammer” it was held that “whether the particular instrument used was a stone or an iron hammer was not material” and was not “necessary to enable the defendant to prepare for his defense” and was not “necessary in the event of a plea of former acquittal or conviction.” State v. Lark, 42 S. E. (S. C.) 175, 176.
In Slover v. Territory, 5 Okl. 506, 510, a case largely relied upon by the defendant, it was said that “matters that are essential to give information of the nature of the accusation and essential to a description of the offense, cannot be omitted” and that “such essential matters” cannot “be stated in the disjunctive;” and the court conceded “that this constitutional provision,” the same as that under consideration in the case at bar, “was not intended to prevent the legislature from dispensing with matters of form only in the description of an offense, nor with any degree of...
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