The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-09-23
OPINION OF THE COURT BY FREAR. ].


The plaintiffs herein and other person brought be-
lore the District Court charge stated in the of
arrest of conspiracy w.t. the violation Chapter
% of the Penal This charge was made more specific
IN court by which, substance charged conspiracy
to accuse and prosecute Chong Fook with the
maintaining lottery In violation of l. Chapter 21,
Prov Govt Laws The Magistrates this entry:
to charge amended that facts therein stated do
not amount to conspiracy stated Charge amended
spcy in the End degree The defendants below pleaded
guilty. evidence aken and the Magistrate found each the
plaintiffs herein guilty and sentenced each imprisonment
at hard labor for year and pay
Section Chapter %, Penal Code defines conspiracy. By
Section 9, conspiracy do certain things which
charge any with felony lis in the first degree" By
TO- conspiracy not appearing to be in the first DEGREE is
in the second This by Chapter
1922 Laws of 1892 read: "a conspiracy establish,
create conduct monopoly in the purchase
and sale of any commodity in the second Degree
section added follows Secton H. Conspiracy
appearing be in the first and second degrees in the third
degree, etc. Maintaining lottery is only misdemeanor.
The specific charge did forth conspiracy in the first
degree The words gin the 2nd degree added apparently
through oversight that Section Chapter of the Penal
Code had been amended rather that section different
substance had been substituted for and that the substance of
the old section 0) had been put section (1 making
in the third degree most of what had previously been in the
second degree.
The specific sufficient charge conspiracy
the third degree The evidence sufficient sustain those
and support finding of guilty in the third degree
The within the limit prescribed for the third degree
See Re HOOpd 10 aw 613 The Magistrate found the PLAIN
ts herein guilty without specifying the degree This
that he found them guilty charged What charged?
charge then calls the oense
conspiracy degree although the
made and proved show conspiracy in the third de
gree only 1t is we'll settled that giving wrong
oene charged does vae the charge The wrong
regarded supusage The avenents and not the
by the peader, determine the oense charged IT,
s. Lehman SO Fed r. 76S State Darts, Al Ia 81;
People Cuddke, 81 Cal 50. The plaintiffs herein
therefore, charged with conspiracy the third degree they
tried that charge the evidence shows and they
guilty charged There therefore, We do
not doubt that the Magistrate well counsel in the lower
thought the charge made under Section 10 of the old
statute mmatera what law they thought they act
under long they in fact acted under the law 1t
certain however, that they did not think they trying
of conspiracy second degree under the law They
thought they trying the degree of conspiracy which
braced all kinds of conspiracy specifically enumerated and
they merely msook the Section in which that degree was de-
crbed called by the number the degree or
oense which the plaintiffs herein charged for which
they were tried and of which they were found guilty
II consider whether if the charge such
as to authorize finding of guilt of several degrees the
presumption from general finding of guilty would be IN
favor of the highest the lowest degree See King Corn
3 Haw. 154.
The writ is dismissed.
Kinney de- I3alIou for plaintiffs in error.
J. r. DE Bolt and p Neumonn for defendant in error