The Hawaiian gazette., 1893-05-23
OPINION OF THE COURT By JUDI, c. J.

OPINION OF THE COURT By JUDD, c. J.
This is an appeal from Judge
Whiting of the Circuit Court, First
Circuit, refusing to discharge the
petitioner from the custody of the
Marshal, the case, in his opinion,
disclosing errors not eognizsble on
GG5ecs corpus The petition sets
forth that petitioner was, at the
March Term of the Circuit Court,
Fifth Circuit, sentenced to pay q
fine Of S25 and be imprisoned at
hard labor for the term of two years
for the otfense of assault with q
dangerous weapon. The NIT
timus under which the petitioner
Is held describes the ofiense
an assault with g dangerous wes-
pom The petition AYERS that his
Imprisonment and restraint are Il
legal because there Is no such Offense
known to our law. The return by
the Marshal to the writ is that the
petitioner was convicted before the
said Circuit Court flor that, being
armed with q dangerous weapon, to
wit, loaded pistol, he did assault
certain persons manning them) with
intent to kill aud murder etc The
record shows that the Indictment was
for the offeuse set forth in the re-
turn. The written verdict of the jury
Is, I'VE find the defendant guilty of
the offeuse of an assault with dan
gerous weapon" or, as it is literally,
"a weapon capable OF taking life"
(-Ke hooholo nei makou ia hoahe-
wais ks mes hoopiiis no ks hews
toso e hoeha me ks mea ku i ks
make.
The clerk entered upon his min
utes that the verdict was Guilty as
charged"
The first question to be considered
is. which Is the virdict; that pre-
scented by the jury, or as entered by
the clerk? We have no hesitation in
holding that the former must be con-
as tie verdict. By our pres
sut practice the verdict is written,
handed by the foreman OF the Jury to
the Court, who reads It aloud to them
and asks il they assent to it This is
q public act, and it Is required by our
statutes that the jury shall find
verdict. 1t need not be in writing,
but the present practice so requiring
it IS proper and not inconsistent with
the law. The entry OF the verdict
By the clerk as understood by him IS
but his private Interpretation OF the
of the verdict, and cannot
be held to contradict the written YER
dict passed up by the foreman. 1t
might be otherwise If the verdict was
1ral, recorded by the clerk and then
read by him from his minutes to the
Jury and assented to by them
We pass now to the next |
question. Does this verdict dis
close an offeuse known to the |
law The defendant was indicted
for an offense described 10 Section 5
Of Chapter X of the Penal Code, to
wit, an assault By person armed
With a dangerous weapon upon an
other with intent to commit bur
glary, robbery, msnslsughter or muir
der. or other crime of such charac
ter"
The verdict of the jury found the
defendant guilty OF an " assault with
a weapon dangerous 10 life" 1t
leaves out the essential ingredient of
the cfense-the intent to commit the
crime, which IN this case was, as by
the indictment. murder. The verdict
was a special one, undertaking to
describe the particular offense of
which the jury found the defendant |
guilty. If the verdict read, We !
ind the defendant guilty as charged |
there would be no difficulty, and the |
uittimus would describe the offense /
as set out in the Indictment 1t IS |
suggested that he jury intended TO |
fud the Defendant guilty of the |
Ofense described N Section s OF said /
Chapter " Of the Penal Code, to |
Wit. Of an assault upon another I
= with q knife, sword cane or any /
JElEE weapon DDflDB5iy Gbu llu4lH Z
emily dangerous to life" no intent /
to do anything more being found 4
Bot thu objection to this view is, that |
: an ashanti h person armed with 1
q dangerous weapon cannot be con-
sidered a. Id,uue witH an assault |
With a weapon . .viyf-,y and immln-
emily dangerous ifr." IS the latter |
weapon EUnId r-q mr. 10 proof of its |
character. sIuc- 4p lB-pection Of 1t or I
a descripriou - u WOul1 make It's
character api STE to the jury, 1
whereas to- L-ru, "a dangerous 4
Feaps vOai u.t.nde a larger
elzs- of xssy s.ime of which |
would not D. ~ gigH-ly and immin
-utly dangerous life Moreover,
it is not require ~ necessity that /
the s=sauii urder S-crion 5 shall be :
shusn 10 have b--n committed with 1
the :. dsngerUns weapon with which /
the defendant Is armed And car
rainly in the case where the