CHAPTER 42.

KEEPING A DISORDERLY HOUSE.

§ 489. Whoever shall keep a disorderly house shall be punished, where no other punishment is expressly provided by statute, by fine not exceeding one hundred dollars or by imprisonment at hard labor not more than six months.

§ 490. The following houses are disorderly within the meaning of the provisions of this chapter, viz:

Houses kept for the purpose of public prostitution.

Houses in which any indecent postures or indecent, immoral, or disorderly shows or sights are exhibited.

Houses kept for the sale of any intoxicating drink without license. Houses in which gambling is permitted.

§ 491. Any part of a building appropriated to either of the purposes above enumerated is a house within the meaning of this chapter.

§ 492. The wife may be punished with the husband for keeping a house for the purpose of public prostitution.

NOTE TO CHAPTER 42.

§§ 489-492 are P. C., ch. 42, unaltered.

Cases in Hawaiian Reports: Govt. v. Wery, 9 Haw., 229.

[CHAPTER 43.]

[§§ 493-506.]

CHAPTER 44.

ATTEMPTS AND INSTIGATIONS.

§ 507. An attempt to commit an offense is some act done towards committing and in part execution of the intent to commit the sameas, for example, putting poison in the way of a person with intent thereby to murder him.

§ 508. A mere preparation of the means of committing any offense, nothing being done in execution of the intent to commit the same, is not an attempt to commit the same-as, for example, merely procuring poison intended to be used for murder.

§ 509. Where any offense attempted is committed by the party making such attempt, the attempt is merged in the offense.

§ 510. Where it does not appear which of two or more degrees of any offense is attempted, the lowest of such degrees is presumed.

§ 511. Whoever attempts to commit any offense for the punishment of which attempt no special provision is otherwise expressly made shall, if the offense be punishable with death or imprisonment for life, be punished by imprisonment at hard labor not more than ten years, and in any other case by fine and imprisonment, or either, in the discretion of the court, but not exceeding the punishment prescribed for such offense.

§ 512. Whoever instigates another to the commission of any offense, by commanding, soliciting, or offering to hire, or otherwise endeavoring to induce him to commit the same, shall be subject to the penalty of an attempt to commit such offense.

§ 513. The instigation is merged in the offense committed in pur suance thereof when the offense is committed in such a manner that

the instigator is guilty thereof, by reason of his being an accessory before the fact or otherwise.

§ 514. If, before an offense is attempted in pursuance of an instigation thereto, the instigator repents and countermands the same, and endeavors to his utmost to prevent the offense, he shall not be subject to punishment for the instigation.

§ 515. No person shall be convicted of instigating another to an offense on the mere testimony of the party professing to have been so instigated, not corroborated by other evidence direct or circumstantial, except in cases where it is expressly otherwise provided.

NOTE TO CHAPTER 44.

§§ 507-515 are P. C., ch. 44, unaltered.

Cases in Hawaiian Reports: Rex v. Kaimano, 3 Haw., 565; Rex v. Leong Tiam, 7 Haw., 340; Govt. v. Oishi, 9 Haw., 644.

CHAPTER 45.

ACCESSORIES AFTER THE FACT.

§ 516. If any one not standing in the relation of husband or wife, parent or child, brother or sister, by consanguinity or affinity, to any person guilty, either as principal or accessory before the fact, of any offense punishable by death or imprisonment for life, shall harbor, conceal, maintain, or assist such person, with the intent that such person shall avoid or escape from detection, arrest, trial, or punishment, he shall be deemed an accessory after the fact to such offense, and shall be punished, where punishment for his offense is not otherwise expressly provided, by imprisonment at hard labor not more than ten years, or by fine not exceeding two thousand dollars.

§ 517. Whoever is accessory after the fact to any other offense punishable by imprisonment for five years or more shall be punished, where punishment is not otherwise provided by law, by imprisonment at hard labor not more than two years or by fine not exceeding five hundred dollars.

NOTE TO CHAPTER 45.

§§ 516-517 are P. C., ch. 45, unaltered. Accessories before the fact, see P. L., ch. 5.

CHAPTER 46.

FORMER CONVICTION OR ACQUITTAL.

§ 518. Any person who has been tried and convicted of any offense before a court, tribunal, or magistrate having jurisdiction of the case shall not be subject to subsequent criminal prosecution therefor, and such conviction may be pleaded in bar of any such subsequent prosecution. § 519. No person shall be subject to be tried again for the same offense, of which he has been found not guilty and acquitted on a former trial, upon the facts and merits before a court, tribunal, or magistrate having jurisdiction of the case; and such acquittal may be pleaded in bar of any such subsequent prosecution.

$520. Where the same act constitutes two or more diverse and distinct offenses, different in their nature and character, one not being merged in the other, the offender may be proceeded against for each,

and can not plead a conviction or acquittal for one in bar of proceedings against him for the other.

§ 521. Any person acquitted on trial of any charge of any offense upon the ground of variance between the indictment, information, or complaint and the proof, or upon any exception to the form or the substance of the indictment, information, or complaint, may be subse quently tried and convicted of such offense under a new indictment, information, or complaint, notwithstanding such former acquittal.

§ 522. Any public officer who is acquitted or convicted on an impeachment for any misdemeanor can not plead such conviction or acquittal in bar of a criminal prosecution for the same.

NOTE TO CHAPTER 46.

§ § 518-522 are P. C., ch. 46, unaltered.

Cases in Hawaiian Reports: Re v. Lau Chew, 8 Haw., 374.

CHAPTER 47.

SUPPRESSION OF OFFENSES.

§ 523. When anyone fears that another intends to commit an offense against his person, or property, with violence, he may apply to any district magist ate, who shall take the declaration of the applicant, under oath, reduced to writing; and if it appears that he has reason to fear the commission of such offense, the magistrate may cause the person complained of to be arrested and brought before him by warrant. § 524. Where anyone so arrested is brought before the justice, he shall hear any statement or proof the accused has to offer, and if from such statement and evidence it appears that the complainant has mistaken the intention of the accused, and has no cause of fear, the prisoner shall be discharged; if he fail in showing that the application is groundless, the justice shall direct the accused to give bond, in a sum proportioned to the nature of the offense, with sufficient surety that he will commit no offense against the person or property of the complainant. § 525. If the bond be not executed according to the order of the magistrate the prisoner shall be committed to prison, and shall remain in custody until the bond be so executed.

§ 526. If, from the nature of the evidence offered, or from the demeanor of the prisoner, the magistrate has reason to believe that the prisoner intends an offense against the person or property of any person who can not be designated, he may order the bond to be conditioned that he will commit no offense against the person or property of anyone.

§ 527. The bond shall be limited in its operation to the term of one year; but it may be for a shorter time; and at any time within the last month of the year, the complainant may renew his application, and the order for security may be renewed on the oath of the party, declaring that he still fears the execution of the prisoner's former designs, provided the magistrate, after hearing the circumstances of the case, shall deem such fear well founded.

528. Any magistrate who is present when any offense, accompanied with violence, is committed, may, without any other proof, order the offender to be arrested, and compel him to give security in the manner above directed, to refrain from the exercise of any illegal force.

$529. Any person who knows or has reason to suspect that any offense against the person or property of another is intended to be committed, may apply to a magistrate, who shall hear the proof, and

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if he be convinced of the existence of such intention, shall cause the person accused to be arrested, and compelled to give security in the manner above directed.

§ 530. Where, upon the conviction of a person for an offense, it appears from the character of the offender or his conduct in committing the offense, there is good reason to apprehend a repetition of that offense, or the commission of some other, the court or magistrate may add to their sentence that after the execution of the punishment is complete, and before the offender, if in custody, is discharged, he shall give security in the form and for the time above directed, either that he will not commit any particular offense or any designated species of offenses, or generally, that he will commit no offense for the time limited.

§ 531. If the condition of any bond given under any of the provisions of this chapter be forfeited, it shall be put in suit by the public prosecutor, who must specify in his petition in such suit, the offense which has caused the breach of the condition of the bond.

§ 532. At any time before the breach of the condition of such bond, the surety may discharge himself by surrendering the principal into the hands of the chief marshal or chief constable of the district.

NOTE TO CHAPTER 47.

§§ 523-532 are P. C., ch. 47, unaltered.

Cases in Hawaiian Reports: Re v. Bridges, 5 Haw., 472.

CHAPTER 48.

SEARCH WARRANTS.

§ 533. Another means of preventing the commission of offenses, and of detecting them when committed, is by the issuing of search warrants. § 534. A search warrant is an order in writing made by a justice, or other magistrate, directed to an officer of justice, commanding him to search for certain articles supposed to be in the possession of one who is charged with having obtained them illegally, or who keeps them illegally, or with the intent of using them as the means of committing a certain offense.

§ 535. The power of granting this writ is one in the exercise of which much is necessarily left to the discretion of the magistrate, but, except in cases where this power is elsewhere specially granted by statute, search warrants can only be granted for the following purposes, viz: To discover property taken by theft or under false pretenses, or found and fraudulently appropriated:

To seize forged instruments in writing, or counterfeit coin intended to be passed, or the instruments or materials prepared for making them:

To seize arms or, munitions prepared for the purpose of insurrection or riot:

To discover articles necessary to be produced as evidence or otherwise on the trial of anyone accused of a criminal offense.

§ 536. A search warrant can be granted in no case but on an affi davit setting forth sufficient facts in the opinion of the magistrate to justify the issuing of such warrant.

§ 537. The warrant must be in writing, signed by the magistrate with his official designation, directed to some sheriff or other officer of justice; and commanding such sheriff or other officer to search for and bring before the magistrate the property or articles specified in the affidavit, to be disposed of according to justice; and also to bring before him the

person in whose possession the property or articles may be found, for examination.

§ 538. If the search warrant be directed to a sheriff or prefect of police it may be executed by him or any of his deputies.

§ 539. Before executing the warrant the officer must give notice to the person who applied for it, that he may be present and identify the property if found.

$540. The officer charged with the warrant, if a house, store, or other building is designated as the place to be searched, may enter it without demanding permission if he finds it open; if the doors be shut he must declare his office and his business, and demand entrance; if the doors, gates, or other bars to the entrance be not immediately opened, he may break them. When entered, he may demand that any other part of the house, or any closet, or other closed place in which he has reason to believe the property is concealed, may be opened for his inspection, and if refused he may break them.

§ 541. If there should be reasonable cause to believe that arms or munitions of war are collected in any place for the purpose of insurrection or riot, or for carrying out any seditious or treasonable intent, or any other unlawful purpose, a search warrant may be issued in such case, with or without an order to the officer executing the same, to bring before the judge or magistrate issuing the same the person in whose possession such arms or munitions of war may be found. And in case the warrant contains no such order, such arms or munitions of war shall, if found, be brought before the judge or magistrate, and be secured by him, and he shall thereupon as soon as may be cause a notice to be published in some newspaper, describing the articles seized and giving notice of a time and place of a hearing, to take place not less than four and not more than five weeks from the publication of such notice, at which time and place all parties claiming such articles may appear and prove ownership. If no appearance shall be made at such hearing, and no action shall be brought previous to the time of the said hearing for the recovery of the said goods by parties claiming such goods, the same shall be forfeited to the government of Hawaii; but if any parties appear at such hearing claiming such goods, or shall bring action before the time of such hearing for the recovery thereof, their claim shall be heard, and if, in the opinion of the court, such claims shall not be satisfactorily proved, or if they are proved, but the court shall find reasonable cause to believe that such articles were collected for the purpose of insurrection, or riot, or for carrying out any seditious or treasonable intent, or for any other unlawful purpose, the same shall be forfeited to the government of Hawaii. In any such hearing the burden of proof shall be upon the claimant to show that such arms or munitions of war were not collected or procured for the purpose of insurrection, or riot, or for carrying out any seditious or treasonable intent, or other unlawful purpose.

§ 542. In the case of any seizure of articles by search warrant under the provisions of this chapter, no claimant shall be entitled to the delivery of such articles before judgment in an action for the recovery therefor, under the provisions of chapter 107 of the Civil Laws, or of any other provision of any other law.

NOTE TO CHAPTER 48.

§§ 533, 534 are P. C., ch. 48, §§ 1, 2. § 535 is P. C., ch. 48, § 3, amended S. L. 1876, ch. 52, C. L., p. 597. $536-540 are P. C., ch. 48, §§ 4-8. §§ 541, 542 are P. G., act 34. P. C., ch. 48, § 9, repealed. S. L. 1876, ch. 52, C. L., p. 597.

Cases in Hawaiian Reports: King v. Ah Lan You, 3 Haw., 393; Hung Lung Kee & Co. v. Bickerton and Parker, 4 Haw., 584; See Hop v. Chillingworth, 5 Haw., 537; Luce, 6 Haw., 684.

R. v.