The Hawaiian gazette., 1869-03-31
SUPREME COURT.
OCTOBER TERM, 1865.

The King rs. AlOna. = ALLEN, c. j.
This Indictment contains four counts
The first charges the prisoner as accessory
before the fact to the murder of one Ko-
kai, at Koloa, Island of Kauai, on the
18th of October, 1867, by procuring some
person, unknown to the prosecution, to
administer arsenic in his food-such per-
son knowing that it was poison, and in
tending to murder.
The second charges that the prisoner
was guilty of murder as principal by fur
nishing the poison, with intent to kill
Kokai, to person unknown to the prose-
cution, who ignorantly and carelessly ad-
ministered it to the deceased.
The third charges an attempt to COM
init the offense of murder by furnishing
the poison to one Goana, with intent to
kill and murder Kokai, which was an act
towards the commission of the offense.
The fourth charges that the prisoner,
by agencies unknown, did instigate, COM
mand, hire, or incite, some other person,
not specifically known, to kill Kokai.
The defendants counsel moves to quash
the Indictment because the first count
charges the defendant as an accessory be-
fore the fact to the murder of Kokai,
while the known principal, Mary Kokai,
has been tried for the ofense as principal,
and acquitted before jury Of the country.
The counsel is illogical in assigning this
cause for quashing the Indictment in this,
that he sets forth that the known principal,
Mary Kokai, has been tried for the offense
as principal, and acquitted. The law sug-
gests contrary inference, viz /: that she is
innocent; therefore, no trial has been had
of principal, against whom verdict of
guilty has been rendered. This, however,
doesnot affect the general question whether
an accessory before the fact can be tried be-
fore the trial and conviction of the principal
offender. According to the general doctrine
of the common law, man can not be guilty
as an accessory unless there is a principal
who is guilty, and be can not be convicted
except jointly with or after the principal,
whose acquittal acquits him.-Com. VS..
Andrews, Sd Mass, 13l Com. vs.. Philips,
10th Mass, 422. By the common law, an
accessory can not be put on trial but by
his own consent until the conviction of
the principal, yet the authorities sustain
the position that he may be indicted be-
fore, as well as after, his convietion.-Stat
VS.. Kicker, 29th Maine, p. 90; 2 Hawk,
Pleas of the Crown, 451. The legislation
of some countries has authorized proceed
ings against the accessory without regard
to the case against the principal offender
The legislation of this Kingdom has not
gone to this extent. A similar statute
existed in the State of Massachusetts to
our own, and in the celebrated case of
Com. vs.. Knapp, Mr.. Justice Putnam said:
the object of this statute being to provide
for the punishment of accessories, we must
conclude that it relates only to accessories
in the legal sense at the time of the passage
of the act, and not to those who were in
the eyes of the law regarded as principals
1t is an established rule that statute
is not to be construed to repeal the COM
mon law, unless that intent is clearly ex-
pressed.
It follows. then, conclusively, that if he
can not be tried till the principal is con-
victed, that it Is a misjoinder to charge him
as accessory before the fact, and as princi-
pal, in the same Indictment One person
may be charged as principal, and another
as accessory before the fact, in the same
indictment; but to charge the same person
as principal and accessory in the same in
dictment, involves legal incongruity, and
is repugnant to the principles of criminal
pleading. 1t does not come within the
rule of giving authority to convict of q
crime of lower denomination than the one