Territory v. Coe , 37 Haw. 601 ( 1947 )

I respectfully dissent. The opinion of my brother, the Chief Justice, suffices for a statement of the case and of the errors assigned.

The problem presented for review is, in my opinion, extremely simple and its mere statement its own solution.

The statutory offense of negligent homicide is defined as follows: "Every person who by the operation of any vehicle in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause the death of another, shall be guilty of the crime of negligent homicide * * *."¹

The earlier indictment alleges a negligent homicide in which the negligence causing the homicide is described as "driving said motor vehicle on the left or mauka side and wrong lane of said road, in a Wahiawa direction * * *." The later indictment alleges negligent homicide in which the negligence causing the homicide is described as "driving said motor vehicle on the left side and wrong lane of said road, in a Waialua or makai direction * * *." The court knows judicially that Wahiawa and Waialua are geographically in opposite directions. The Hawaiian word "mauka" means inland, in an opposite direction to the sea. The Hawaiian word "makai" means towards the sea. What is the left side of the road depends upon the relation that the sides of the road bear to the direction traveled. Obviously, the left sides of the same road are different when the directions traveled are opposite. Hence the negligence alleged in the earlier indictment is negligence different from that alleged in the later indictment and each indictment alleges a different offense. The situation is no different from two indictments against the same person for murder, one alleging the infliction of the mortal wound by means of a revolver and the other describing the lethal weapon as a dagger. Two different offenses are alleged.

The admission that both indictments refer to the same offense, the earlier incorrectly so but the later correctly, is immaterial. Nor is it material that both indictments, in addition to the same time, place and name of defendant, allege the same type of negligence causing the homicide.

If, as the majority holds, Revised Laws of Hawaii 1945, section 10664, applies only to a material variance, it is applicable to the instant case. Negligence is an essential element of the crime and must be both alleged and proved. Similarly, the specifications of negligence when alleged in the indictment. The variance occurred from an incorrect recitation in the earlier indictment of the specifications of negligence and the trial court was consequently justified in directing a verdict of acquittal. But under the statute the acquittal did not bar a subsequent trial under a new indictment.

In my opinion the order sustaining the plea in bar should be reversed.

¹ R.L.H. 1945, § 11399.