The Hawaiian gazette., 1868-11-11
supreme Cours--In Banco.
TIE Kse VS.. HuLu.


The opinion of the Court was rendered BY
Mr.. Justice Hartwel, Allen, C. j., and Aus
tin, j., coneurring.
This was bill Of exception TO the decision
of the Circuit Court Of the Third Judicial
District, in overriding motion in arrest Of
Judgment for alleged defects in the indict-
ment
The defendant was indicted for having, at
Onoulinui, with force and arms, and unlaw-
fully and feloniously, broken and entered, on
the night of July IL, 1865, the office Of Robert
c. Janion and William L. Green, with intent
uniawfully and feloniously to steal, and for
then and there stealing certain books Of ac-
count, to the value Of SIS or thereabout. It
is claimed that under our statutes there Is no
common law offence of burglary, that this in
dictment was intended to be laid under the
10th and 18th Sections of chapter IA Of the
Penal Code, but does not contain sufficient
averments to come under either of these sec
| tions, and charges no offence known to the
law here. The defendants counsel insist that
the sections referred to describe distinct sub
stantive offences; that essenfial ingredients
of the offence described in the 18th section,
and not charged in the Indictment, are the
presence In the office of another person law
fully there, and the offender being armed with
dangerous weapon, at the time of the entry.
In the argument 1t was not insisted by the
Attorney General, nor do the Court consider
that the offence was, or was intended to be,
charged under this section.
But the defence further claims that material
ingredients of the offence described in the
nth section, and not charged in the indict-
ment, are the absence Of another person law
fully in the building, and the offender not
being armed at the time of the entity.
We do not regard these sections as setting
forth two separate and distinct offences, but
only one the substantial elements of which
are, breaking and entering at night any of the
buildings specified, with intent to commit
felony therein. The 18th section enumerates
certain aggravated circumstances attending
this offence, which the 18th section enumer-
ates as not attending the same offence. The
words of the 17th section refer directly to
those preceding, and can only be read and
understood in connection Herewith, to ex-
plain the words, ssSeh person being within
such house." and "sueh offender being 90
armed" The 18th section is in the nature of
an exceptional or provisional clause, modify
ing the 10th section by providing lesser
punishment for the offence when not com
mitted under certain circumstances Attend
ant circumstances need not be set forth
which do not form o constituent part Of the
offence.
II is not only unnecessary to aver more
facts than are legally and substantially suf-
fcient to make out the offence, but too great
minuteness and strictness are 10 be avoided.
Rex VS.. Airley, 2 East a. Less minuteness Is
required in charging mere matter of aggrava-
ton or inducement, Bacon's Abr, Title In
dictment, still less in matter Of mitigation.
We know ofno authority requiring the Gov
ernment to aver or prove that the offenders
had no dangerous weapon when he committed
the offence On the general principle that it
is unnecessary to deny that which the other
side would properly affirm in defence, II Is
well settled that an indictment for statute
offence need not negative the provisoes, nor
show that the defendant is not within the
benefit of the exceptions in the distinct
clauses Of the statute. Spheres vs.. Parker, 1
T. r. 14l, Commonwealth vs.. Hart, II Cush.
100, State VS.. Adams, 6 N H. 5SS.
The Court consider this case as coming
within the above rule. In cases similar to
this, the authorities are conclusive Under
the Statute 48 Geo. g. ch. 129, provision was
made for the offence of stealing from the per-
son "without such force or putting in fear as
is sufficient to constitute the crime of rob
berry" In Rex vs. Pearce, Rus. & Ryan ia,
and in Rex VS.. Robinson, Id. 321, the Court
held that it was neither necessary nor proper
in an indictment under this statute, to mega
tive such force or putting in fear, and that
the meaning Of the statute was, ''such force
or putting in fear not being charged as 50 DONE"
The Massachusetts cases cited by the At
torney General are exactly in point, and the
rule by Chief Justice Shaw, in Deyoe vs.
Commonwealth, 8 Met s26, governs this
case, viz: when there are several species
of the same general crime, with more or few
er circumstances of aggravation, ard subject
to graduation OF punishments, 1t isn not neces-
sary in the indictment to negative those cir
cumstances which would render 1t more ag-
grayated.' See also Commonwealth vs..
Squire, Met 25s, and Larned VS.. Common
wealth, IL Met. 240 We are satisfied that
the non-averments complained Of worked no
injury to the defendant, that the Indictment
charges an offence under the statutes, in
terms sufficiently clear to enable the Court to
determine Its nature, and what, If any, pun
ishment should be awarded, and to enable
defendant to plead previous conviction In
bar Of any future proceedings on the same
grounds. The indictment being held to be
good under the statute, it is unnecessary to
consider Its force outside Of the statute.
Judgment affirmed.
Mr.. Attorney General Phillips for the
Crown, w. c. Jones, ESQ, for the defendant
NEW ORLEANS, October IA storm Of
wind and rain commenced here Thursday