Territory of Hawaii v. Yoshimura , 35 Haw. 334 ( 1940 )

Per Curiam.

This case is here on writ of error sued out by the Territory. As the outgrowth of the alleged killing of Katsutaro Urabe the grand jury of the fifth judicial circuit returned an indictment against James N. Yoshimura, defendant in error. The first and second, counts of the indictment are identical with the indictment in No. 2412 heretofore considered and adjudicated by this court. (See ante, p. 324.)

The indictment in the present case, however, contains a third count charging the defendant with the violation of section 6283, R. L. H. 1935, commonly known as the “hit-and-run” statute. The loAver court sustained defendant’s motion to quash the indictment as to counts one and tAVO but upheld count three. The defendant has perfected no appeal, hence the sufficiency of count three is not in issue in the present appeal.

By stipulation of the parties, filed in No. 2412, it Avas agreed that the tAvo appeals be heard together and that the record and transcript on appeal in No. 2412 may be considered and used interchangeably in both proceedings and that but one set of briefs need be filed. In our opinion in No. 2412 Ave held that count one fails to apprise the defendant of the nature and cause of the accusation against him and therefore contravenes the requirements of the sixth amendment to the Federal Constitution. We further held that count two is sufficient in every essential to charge the defendant with the crime of involuntary manslaughter. .

A. G. Kaulukou, County Attorney of Kauai (also on the briefs), for the Territory. P. L. Rice (also on the brief) for defendant.

Therefore, so much of the order appealed from in the present case as grants the motion to quash the first count of the indictment and denies the motion to quash count three, is sustained. To the extent that the order nullifies count two, the same must be and is vacated and set aside and the cause is remanded to the court below for further proceedings conformable to this opinion.