The Hawaiian gazette., 1889-12-03

ASN AM
Opinion Of the Colr: 6y Preston, J.
The defendant was indicted at
the present term for that the de-
PENDANT "with divers other per-
sons 10 the Acknowledgement un-
known, wickedly deviSing and in
tending 10 levy war against the
Kings Government and to employ
force in contravention of the laws
and in opposition To the authority
of the Kings Government and with
the intent of affecting the public
tranquility generally, did mali
ciously and fraudulently combine,
confederate, agree and mutually
undertake and concert together to
commit the crime of treason"
To this Indictment the defendant
demurred.
The Chief Justice, who was pre-
siding, overruled the demurrer and
the defendant presented a bill Of
exceptions which WAS allowed.
On the argument before Us it
was contended on behalf Of the de-
PENDANT, that the indictment WAS
had because il alleged that the con-
SpiEacy was 10 sscommit the crime
Of treason" and did not set out in
proper language and wordS the
statutory offenSe Of treason.
On behalf of the prosecution it
WIS contendei that the intent
alleged in the indictment was Suff-
eient and that ii was not necessary
10 set ont the means by which the
conspiracy was 10 be effected.
(St0ts uS. Ripley Il ais, 81 Me-,
$50; RG-sR rS. Commonwealth, eS
Penn, ST. $50.
Conspiracy is defined in the Pc
nSl Code IS - 4 malicious or fraud
ulSnt combination or mutual under
taking Or cOneerting together Of
two or more 10 commit any oifenSe,
or inStigate any one thereto, or to
charge any one Herewith, or 10 do
what plainly and directly tends 10
excite or occasion offenSe, or what
Is obviously and directly wrongfuny
injurious 10 smother. For instance,
s eOnfederacy 10 commit murder,
robbery, theft, burglary or sny
other offenSe provided for in the
Criminal Code"
TrsaSon Is defined ~to be any
plotting or attempt TO dethrone or
destroy the King, or the levying Of
var against the Kings Govern
ment, or the Sdhering to the enc
mics thereof, giving them aid and
comfort, the same being done by
person owing allegiance TO this
Kingdom"
II Is 10 doubt true that il is IN
necessary 70 state in the Indictment
the means by which the conspiracy
Is 70 Be effected {. Z. in eonSpir-
acy 10 murder that s knife, pistol
or other weapon. or poison was 10
be USED. II Is enough for the
pleader 70 SCI out the offenSe aimed
ST, by such Spt woriS IS VIII de-
scribe II s. = conclusion Of l2v.
(WhSrto1'S Presidents o. Indict-
meutS snd Pleas, Vol ,, p sou
Thus il Is sufficient 10 say that the
defendants conSpired felOni0asly,
wlf1ly Snd Of their malice afOCe-
thought 70 Kill 2nd murder one A
B. OF thSt they eOlspired /" certain
goods Snd ehstteis Of great ySlue.
etc. then belonging 10 and on the
person OF a B, felOni0usiy 10
steal Cora rs. Rogers, 5 SER &
R, 4S2
II Is nos sufficient 10 describe the
Conspiracy - $ conspiracy, 70 CON-
nit the crime Of murder, larceny,
O. robbery. o. IS in the case before
the Court. 10 commit the crime Of
treason. bur the statutory de-
s,ripSioa q the oEe1se must De SCI
ont - that the Court may Sc that
the fscsS charged would, II commit
ted. zmoant 70 the statutory crime
a treason There 7re several
thfnrs. which II committed, sO1ld
Dc Treason. and the Indictment
should Suege the conspiracy 70 Be
ID 6eshru1e OF destroy the King 70
levy wzr sgainst the Kings Gov
eminent. the Sihe-ing 70 the enc
uss thereof. IS the case u2y Be-
Upon principle And authority, We
6rd this Indictment 10 Dc inSafh-
e5e-,t. and one tf1zt the defendant :
not called nPon 10 answer Bat We
III not order judgment 70 Dc Ell
ts1ei in his favor, - under Se'c1ro1
5 q the Act s. To regulate the
p-sst5se snd procedure in criminal
css- We hsve authority 10 canse
h Indictment 10 Be amended
We Therefore direct that the
xs-k q the Court do forthwith
sueod the fnsi5esuas1t in Conformity
With this deciS5ol
P Neuuz1n for the defendant
ne Attu-n0y-Gezsrzl C W Ash
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