The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-05-18

c0gnizable on "habeSs corpus"
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 cognizable on
hGbeds corpus. The petition sets
forth that petitioner was, at the
March Term OF the Circuit Court,
Fifth Circnit, sentenced to pay a
fine OF SIS and be imprisoned at
hard labor for the term of two years
for the offenss Of assault with q
dangerous weapon. The nit
timus under which the petitioner
IL held describes the offense
an assault with q dangerous wea-
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 'fOr that, being
armed with dangerous weapon, to
wit, a loaded pistol. he did assault
certain persons manning them) with
intent TO kill and 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, "We find the defendant guilty Of
the offsnse of an assault with a dan
gerous weapon" or, as it is literally.
"a weapon capable of taking life,
('1ke hooholo nei makou IA hoahe
waia ka mea hoopiiia no ka hewa
hoao hoeha me ka mea ku 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-
sented by the jury, or as entered by
the clerkf We have no hesitation In
holding that the former must be con-
si6ared as the verdict By our pres
ent practice the verdict is written,
handed by the foreman OF the jury TO
the Court, who reads it aloud to them
and asks If they assent to it. This is
q public act, and it is required by our
statutes that the jury shall find q
verdict 1t need not be in writing,
but the present practice so requiring
1t 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
meaning of the verdict, and cannot
be held to contradict the written YER
dict passed up by the foreman. It
might be otherwise IL the verdict was
oral, 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 offense known to the
law ! Tue defendant was indicted
for an offense described in Section 5
OF Chapter TX of the Penal Code, to
wit, an assault by a person armed
with dangerous weapon upon an
other "vith intent to commit bur-
glary, robbery, manslaughter or muir
der, or other crime Of such eharac-
ter"
The verdict OF the jury found the
defendant guilty of an assault with
weapon dangerous TO life" II
leaves out the essential ingredient of
the offense-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
find the defendant guilty as charged"
there would be no difficulty, and the
mittimus would describe the offsnse
as set out In the indictment. 1t is
suggested that the jury intended to
find the defendant guilty Of the
otfense described IN Section s of said
Chapter X. OF the Eeual Code, to
wit, of sn assault upon another
with knife, sword cane or any
other weapon obviously and immin-
emily dangerous to life no intent
to do anything more being found.
But the objection to this view Is, that
an assault by a person armed with
a dangerous weapon" cannot be con-
sidered as Identical with IAN assault
with q weapon obviously and immip-
emily dangerous to life" as the latter
weapon would require no proof of its
character, since an inspection of it or
description of it would make IS
character apparent to the Jury,
whereas the term, "a dangerous
weapon" would include q larger
class OF weapons, some of which
would not be obviously and immin-
emily dangerous tc life. Moreover.
it Is not required OF necessity that
the assault under Section 5 shall be
shown to have been committed with
the dangerous weapon with which
the defendant is armed. And GER
tainly In the case where the
assault Is made with intent to
commit burglary or robbery
1T might well be that though
armed with a dangerous weapon
the sssailant might not use it in
making the assault We do not con-
sider 1T refinement of language to
hold that verdict of guilty of an
assault with a weapon dangerous TO
life would not answer the descriD-
ton of the offense OF an assault with
weapon obviously and imminently
dangerous to life. And it follows
That the mittimus does not disclose