The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1868-11-04

THE Krxe rs HuIu

THE KING vs.. Hull.
The opinion of the court was rendered by
Mr.. Justice Hartwell, Allen, c. j., and Aus
tin, j., concurring.
This was a bill ofexception to the decision
of the Circuit Court of the Third Judicial
District in overruling 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 ieloniously broken and entered, on
the night of July IL, 1868, the office of Robt
c. Janion and VIM. L. Green, with intent
unlawfnlly and feloniously to steal, and for
then and there stealing certain books of &C
count to the value Of SIS or Whereabouts. 1t
is claimed that under our statutes there is no
common law offence of burglary, that this
Indictment was intended to be laid under the
10th and 18th section of chapter IA of the
Penal Code, but does not contain sufficient
averments to come under either of these Sec
tons, and charges no offence known to the
law here. The defendants counsel insist that
the section referred to describe distinct sub
stantive offence; that essential ingredients of
the offence described In the 10th section, and
not charged in the Indictment are the pres
ence 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 intend
ed to be charged under this section.
But the defence further claims that materi-
al ingredients of the offence described in the
nth section, and not charged in the indlct-
ment, are the absence of another person law
fully in the building, and the offender not
being armed at the time of the entry.
We do not regard these sections as setting
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 10th section enumerates
certain aggravated circumstances attending
this offence, which the 18th section enumer
ates as not attending the same offence. The
words of the nth section refer directly to
those preceding, and can only be read and
understood in connection Herewith, to ex-
plain the words, "sUch person being within
such house." and "such offender being so
armed" The 18th section is in the nature of
an exceptional or provisional clause, modify
ing the 18th section by providing lesser
punishment for the offence when not COM
mitted under certain circumstances Attend
ant circumstances need not be set forth which
does not form constituent part of the Of
ence.
1t is not only unnecessary to aver more
facts than are legally and substantially suf
ficient to make out the offence, but too great
minuteness and strictness are to be avoided.
REX VS.. Airley, 2 East 81. Less minuteness
is required in charging mere matter of aggra-
walton or inducement, [Bacon's abr: title
Indictment still less in matter of mitiga-
ton. We know of no authority requiring
the Government to aver or prove that the of
fender had no dangerous weapon when he
committed the offence. On the general prin-
ciple that it is unnecessary to deny that which
the other side would properly affirm in de-
fence, it is well settled that an Indictment
for Statute offence need not negative the
provisors, or show that the defendant is not
within the benefit of the exceptions in the
distinct clauses of the Statute. Spierles VS..
Parker, l, Q, r. al, Commonwealth VS.. Hart,
IL, Cush. 100, State vs.. Adams, 9 N. II. 533.
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. 3, ch. 1919, 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 Rexvs. Pearce, Rush 81 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 so done"
The Massachusetts, cases cited by the At
torney General are exactly in point, and the
rule by Chief Justice Shaw in Deyoe VS.. Com
3 Met. 326, governs this case,
viz: "When there are several species OF
the same general crime, with more or fewer
of aggravation, and subject to
/ graduation of punishments, it is not neees-
sary in the Indictment to negative those cir
which would render 1t more ag-
yravated." See also Commonwealth vs.
squire, Met. 25S, and Larned VS.. Common
wealth, IL Met. 240 We are satisfied that the
complained of worked an in
ury to the defendant, that the indictment
charges an offence under the statutes, in
erms sufficiently clear to enable the Court to
its nature, and what, if any, pun
shment should be awarded, and to enable
defendant to plead previous conviction in
,ar of any future proceedings on the same
rounds The indictment being held to be
rood under the statute, it is unnecessary to
consider its force outside OF the statute.
Judgment affirmed
Mr.. Attorney General Phillips for the
)rown, W. G. Jones, Esq, for the defendant.