The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1889-10-22
SUPREME COURT.
CRIMINAL DIVISION.
N BANCo.
MONDAY, Oct. IA.

son and F. NJ. Hatch appeared for the
prosecution, and Paul Neumann and A.
Rosa for the defepse.
His Honor Chief Justice Judd and
Associate Justices McCully, Preston,
Bickerton and Dole, were all on the
Bench 10 listen to the argument OF
counsel IN objection TO the validity of the
Indictment under which Ho Fou was
charged with conspiracy.
The arguments in favor of the demur-
rer TO the indictment were made by Mr..
Paul Neumann; the arguments against
and in support of the Grown were made
BY Mr.. F. NJ. Hatch, Deputy Attorney
General Peterson also being present.
Mr.. Neumann's argument tended to
show that the Indictment ought to set
out the statutory words defining the
sffense which certain persons had con-
opired to commit, and that it invalidated
the process to simply name the offense.
Mr.. Hatch, argued that the indict-
ment as woried was sufficient for the
purpose intended. 1t showed the in
tent OF the person charged to do an lille
gal act by forming 4 conspiracy. He
objected TO the wiping out of any OF the
words in the indictment. The object OF
the indictment mainly was TO give no.
tice TO defendant OF the charge against
him.
After the quoting OF authorities by
both counsel, Chief Justice Judd an
nounced that the Bench would take the
matter under advisement and present 4
decision at l 80 o'clock until which
time, the Court, at IL O'Clock, ad-
iourned.
AFTERNOON SESSION.
When the Court resumed at so
o'clock, Chief Justice Judd rendered
decision in the matter OF the demurrer
to the indictment charging Ho Fon with
conspiracy.
His Honor said in substance that the
Court WAS of opinion that the Indictment
was detective or rather insufficient in
not setting forth in apt words the nature
of the offense for which the conspiracy
is alleged to have been made. But they
do not sustain the demurrer and dis
miss the charge against the defendant,
but under the authority which will he
found on page S47 Of the Compiled Laws
the Indictment is ordered 10 be amended
by the Clerk of the Court.
Acknowledgement Ashford then pre-
scented an amendment which was added
10 the original indictment.
Ho Fon, the party charged, was then
arraigned and pleaded not guilty.
Tuesday morning at 10 o'clock was
then set as the time for trial, and the
Court at As p. N. adjourned.
ORIGINAL INDICTMENT.
The Acknowledgement of the Kingdom
on behalf Of our Sovereign Lord the
King, upon his official oath presents
that Ho Fon, a foreigner by birth, OF
Honolulu in the island OF Oahu, at Ho-
nolulu in the island of Oahu, and within
the jurisdiction OF this honorable Court
on to wit the twenty-ninth day Of July
in the year 1889, together with divers
other persons TO the Acknowledgement
unknown, wickedly devising and intend
ing to levy war against the Kings gov
eminent, and TO employ force in contra
vention OF the laws and in opposition to
the authority Of the Kings Government
and with intent OF affecting the public
tranquility generally, did maliciously
and fraudulently combine, confederate,
agree and mutually undertake and con-
cert together 10 commit the crime of
treason.
And so the Acknowledgement affirms
upon his official oath, and presents
that the said Ho Fon at the place afore-
said did commit and is guilty Of the
crime of conspiracy in the first degree
against the peace and dignity OF the
King and contrary to statute in such
case made and provided"
AMENDED INDICTMENT.
And now comes the Acknowledgement
of the Kingdom and moves the Court for
leave to amend the Indictment herein
BY striking out all the words after the
words eighty-niue in the last line thereof
to and including the word treason, and
inserting in place thereof the words here
following, that is to say: together with
r. W. Wilcox and divers other persons
whose names are to the Attorney-Gen-
eral unknown, did unlawfully, malic-
iously and feloniously conspire, combine, |
confederate, agree and mutually under |
take and concert to commit an ofense TO |
wit, the offense Of treason, by levying |
war against the Kings Government.
Dated this 14th day Of Sept, 1889.
G. W. ASHFORD,
Atty.-General."
TIE Law ALLOWING AMENDMENTS TO |
INDICTMENTS.
The law by which the Court is guided |
in its decision on this matter IS, as was
mentioned by Chief Justice Judd in his |
remarks, to be found on page 347 Of the |
Compiled Laws, and is one which was |
formulated by Judge Preston when he
was Rer. from LAhain2 in 1876. 1t Is |
netitled OBJECTIONS TO Indictments, How
Taken, Power Of Amendment" and /
reads as follows:
every objection to any indictment
for any defect apparent on the face
thereof, shall be taken by demurrer or
motion TO quash such indictment before
the accused has pleaded and not after
wards; and every Court before which /
sny such objection shall be taken for any /
such defect may, if il be thought neces-
szry, cause the indictment TO be forth
with amended in such particular by some
officer Of the Court or other person, and
thereupon the trial shall proceed as If no
such defect had appeared; and no mo-
lion in arrest Of judgment shall be al
lowed for any defect In any indictment
which might have been taken advantage
Of nv demurrer or motion TO quash as
aforesaid"
TUESDAY, Oct. Is.
The King vs.. Ho Fon, charged with
The Acknowledgement and
ais deputy. and also F. II. Hatch, were
attorneys for the prosecution; and Paul
Senu,ann WAS attorney for defendant.