The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1877-11-07
WEDNESDAY, NOVEMBER Z. 1917
Supreme Court of the Hawaiian rs.
lands, October Term. 1877. in
Banco.
REX rs. PATRICK THORNTON
Judd and McOully, J. Opinion by Judd, j


The prisoner wish three Others was indicted
for conspiracy to charge felony with intent TO
extort money The evidence showed tina, the
crime Of extortion. the object of the conspiracy,
had been accomplished. The prisoners counsel
asked the Court TO instruct the jury TO acquit
the prisoner on the ground that the conspiracy
had become merged 10 the subsequent felony.
By our statute a conspiracy to charge felony
is felony. The crimes, then, are of equal de-
gree. There is, therefore, no merger. and each
is punishable separately. See Greenleafs eyid-
dence, Z 90 "Where two crimes are of equal
grade there can be legal technical merger"
People vs. Mather, Wend. 265 E; State vs.. Muir
ray. Is Me- 100. In the last case cited the
Court say, In cases of conspiracy overt acts are
LAID merely as evidence OF the principal charges.
Ii is not laid in this indictment that the
charging OF a felony was actually committed but
i, was proved before the jury, IN order TO show
that the threat TO charge u certain felony, was
the means employed for the extortion, and that
was the motive for which the conspiracy was
formed. By DOR statute it is clear that it Is not
necessary to charge that the object of the con.
spiracy had been accomplished. Section 3 reads
1t is not requisite that the act agreed upon
should be done or attempted in pursuance of the
conspiracy; the conspiracy itself constitutes the
Oucnee.
The rights of persons accused of conspiracy
are fully protected in Section Of the Chapter
on conspiracy, which provides that. Where one
is convicted of an oBense, he Is not liable there.
after TO be tried for or convicted OF conspiracy
10 commit the same and If u conspiracy TO com
nit an offense ana the commission of the same
he charged in The same indictment, the defend
ant is liable To be sentenced for one only" This
section would rebut the ilea that there could be
a merger even If the conspiracy and the ofense
which ii referred to were oil different grades
The Court was right in refusing TO charge rs re-
quested.
The second point made is that the jury should
have been charged that unless they were salts
fed that the prisoner knew that the crime which
the conspiratOrs agreed to charge upon the per
son from whom the money was extorted. was
identical with that charged in the indictment
they must acqnit him.
The Court was right in refusing this instruc
ton. for if this prisoner did not know the exact
crime which was agreed to be charged, be was
not claimed to be innocent Of accedng TO it. and
OF receiving his share Of the money which wa:
extorted, and this would make him guilty OF con
spiracy. Ii must be admitted that if the jury
had found on the evidence that the crime to be
charged was smuggling opium-a misdemeanor-
they would properly have found the prisoner
guilty of conspiracy in the second degree. Thi:
instruction was not asked for by the counsel fol
the prisoner, and was therefore not given or re
fused, and therefore no exception on this point
can now be considered. See Dowsett vs.. Lipoa
3 Haw. 625.
Clearly the jury were not authorized to acquii
the prisoner on the evidence, and this was the
only instruction asked for.
Messrs. +. Preston and T. G. Mcdowell fol
the prosecution Messrs. s. B. Dole and Il. F
Bickerton assigned counsel for the prisoner.
Honolulu, Nov. l, 1877.