Evening bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1895-1912, 1906-01-04
Frear Not
For Rape
Conviction

OVuuUVluvI1
In a majority opinion handed down
Wednesday the Supreme Court sus
tains the verdict of the Circuit Court
In the criminal matter of the Territory
against Frederick Schilling, charged
with assault with intent to rape, find
ing no error in the record and there.
fore affirming the judgment OF the
Circuit Court. Defendant was con
victed.
Justice Hartwell and Wilder are the
deciding members Of the court Chief
Justice Frear dissents.
The defendant was tried, convicted
aud sentenced upon an Indictment
charging an assault with intent to com
NIT the crime of rape. He pleaded a
former trial and conviction by the
magistrate OF the district of Lihue OF
the offense of assault and battery and
that the same assault was charged in
the indictment. In supplemental
plea he also pleaded that he was ad.
yised that the facts shown at the trial
Ut the assault and battery amounted
In law felony and therefore that
he could no afterwards be prosecuted
Tor the felony under the statute, which
provides as follows:
'If upon the trial of any person for
any misdemeanor II shall appear that
the facts given in evidence amount In
law to a felony, such person shall not
ly reason thereof be entitled to be &C.
quilted of such misdemeanor, and no
person tried for such misdemeanor
shall be liable to be afterwards prose.
cuted for felony on the same facts.
unless the court before which said
trial may be had shall think fit in its
discretion to discharge the jury from
. giving any verdict upon such trial, and
10 direct such person to be proceeded
against for felony, In which case such
person shall be dealt with In all re.
tLects as II he had not been put upon
lis trial for such misdemeanor." X.
L., Sec. 1854.
The pleas we're overruled, the court
declining to hear evidence in vertical
ton of the plea OF former conviction,
The defendant excepted to the rulings
and assigns them as error
The statute on which the supple
, mental plea is based applies to a jury
trial and does not authorize magis
;rate to acquit OF misdemeanor upon
/, finding that afelony Is shown by the
, evidence and commit the defendant FOL
trial for the felony. The court, in ov
y erruling the plea must be deemed &c
!. have taken its averments as true. The
!. question Is therefore presented wheth
er the plea was good.
Held: the offense for which the de
a PENDANT was formerly tried and that 70;
; A.. l,A kNit
/. statute (Sec. 2734, X. ID providing
:. that where the same act constitutes
two or more diverse and distinct oil
n lenses different in their nature ant
3 character, one not being merged In thu
C other, the offender may be proceeded
against for ach and cannot plead con
I viction OF one in bar OF proceeding
; against him for the other" also tina
; inyasmuch as a verdict could not b.
v given for an assault at the trial on thu
Indictment the defendant was no
0 placed twice in jeopardy for one ant
}, the same offense.
C Says the Chief Justice, dissenting
The principal question Is whether
! conviction OF assault and battery Is
k bar to a subsequent prosecution for az
; sault with intent to commit rape, tn
}, transaction being the same In boil
cases
II goes without saying that in orde
II to be the same offense" the offense
must be the same In both law and fact
IL Is obvious that such Is the case here
Tor the assault In both the assault an,
(; battery and the assault with intent &
b commute rape Is the same act In fac
4 and the same offense in law.
Allegations sufficient to show an az
/, sault with intent to commit rape necei
!, sarily show an assault. Therefor
/ there could be conviction of the lat
ter on charge of the former. Sine
q the opinion OF the majority depends en-
q tirely on the view that there cannot b
ID a conviction OF assault under a charg
of assault with intent to commit rap
4 In the absence of statute expressl
!; permitting II, then, II, as believe. tina
A. view is erroneous, their reasoning n
qulres the opposite conclusion.
q In view of the opinion OF the majoi
!. ity OF the court II will be unnecessar
a for me to express an opinion as
4 whether, aside from the question G
identity OF offenses, the alleged forme
n conviction Is not bar on the groun
A that there was no former jeopardy b.
n cause. as contended, assault and ba
terry was at the time OF such convictio
q an Infamous offense and therefore b.
r yond the Jurisdiction of the distriC
Z magistrate who tried that case.
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