
    STATE OF HAWAII, Plaintiff-Appellee, v. CLARENCE ALAN BAKER, Defendant-Appellant
    NO. 5480
    AUGUST 5, 1974
    RICHARDSON. C.J.. LEVINSON. KOBAYASHI. OGATA AND MENOR. JJ.
   OPINION OF THE COURT BY

RICHARDSON. C.J.

Defendant-appellant Clarence Alan Baker was convicted of three counts of forgery in the second degree. In the indictment the state charged that the appellant:

. . . did, with intent to defraud, falsely complete and utter a written instrument, to wit a check . . . thereby committing the offense of Forgery in the Second Degree in violation of Section 708-852 of the Hawaii Revised Statutes.

However HRS § 708-852 states in pertinent part:

(1) A person commits the offense of forgery in the second degree if, with intent to defraud, he falsely makes, completes, or alters a written instrument, or utters a forged instrument ....

Defendant-appellant argues that because the indictment charging him incorrectly described the offense of forgery in the second degree, the offenses described in the charges were not proved and he was consequently tried and convicted of an offense never charged. Although we find the indictment to be inarticulately drawn, we hold that the appellant was not prejudiced by any technical error in the wording of the indictment. Each count of the indictment was explicitly drawn so as to describe in detail each allegedly forged instrument. The serial number, drawee, drawer, payee and amount of each commercial instrument were fully set forth in the indictment, as was the particular conduct of the defendant asserted by the state to be unlawful. Under these circumstances we cannot say that the indictment was fatally defective for failure to give the defendant reasonable notice of the offenses with which he was charged.

Pursuant to HRS § 726-34, in the indictment,

. . . the offense may be charged either by name or by reference to the statute defining or making it punishable; and the transaction may be stated with so much detail of time, place, and circumstances and such particulars as to the person (if any) against whom, and the thing (if any) in respect to which the offense was committed, as are necessary to identify the transaction, to bring it within the statutory definition of the offense charged, to show that the court has jurisdiction, and to give the accused reasonable notice of the facts.

On the basis of the foregoing we hold that the indictment specifically charged the appellant with three violations of HRS § 708-852, and, although inarticulately drawn, provided the appellant with sufficient facts to put him on reasonable notice of the charges against him. See Territory v. Henry, 43 Haw. 54, 57 (1958).

Philip H .Lowenthal, Deputy Public Defender (Donald K. Tsukiyama, Public Defender, with him on the briefs), for defendant-appellant.

Andrew T. Johnson, Jr., Ass’t County Attorney (Arthur Ueoka, County Attorney with him on the brief), for plaintiffappellee.

Affirmed.

DISSENTING OPINION OF

KOBAYASHI. J.

I would reverse and acquit defendant. Even a cursory reading of Section 852 of the Hawaii Penal Code, which provides in relevant part:

(1) A person commits the offense of forgery in the second degree if, with intent to defraud, he falsely makes, completes, or alters a written instrument, or utters a forged instrument . . . ,

makes it clear that the defendant was unlawfully convicted. The indictment charged the defendant, to-wit: . . did,

with intent to defraud, falsely complete and utter a written instrument” (emphasis added). The indictment does not charge the defendant with the offense of forgery.

Under said Section 852 a defendant commits the offense of forgery in the second degree if either (1) with intent to defraud, he falsely makes, completes, or alters a written instrument; or (2) with intent to defraud, he utters a forged instrument.

The indictment was prejudicially ambiguous and defective. A possible reading of the indictment was that the defendant “did, with intent to defraud, falsely complete a written instrument”. However, no evidence was adduced to sustain such a charge. Instead, evidence was adduced to show that the defendant “did, with intent to defraud, utter a forged instrument”. Thus, even if we conclude that the indictment stated the above charge, there was a fatal variance between proof and allegations in the indictment. See Heath v. United States, 209 F.2d 318 (9th Cir. 1954); United States v. Four Diamond Rings, 4 U.S. Dist. Ct. Haw. 693 (1916); Territory v. Miyamoto, 29 Haw. 697 (1927).

It is fundamental that in criminal prosecutions an accused be informed of the nature and cause of the accusation. U.S. Const, amend. VI; Hawaii Const. art. I, § 11; Territory v. Burns, 27 Haw. 253 (1923).

The trial court also erred prejudicially as against the defendant by instructing the jury that the jury could find defendant guilty if they believed beyond a reasonable doubt that the defendant uttered a “forged writing’ ’ — a crime for which the defendant was not charged. 
      
       The Hawaii Penal Code is not yet published in the supplement to HRS, but the text of the Hawaii Penal Code may be found in S.L.H. 1972, Act 9, pp. 32-142.
     
      
       Thu Hawaii Penal Code is not yet published in the supplement to HRS. but the text of the Hawaii Penal (’ode may be found in S.L.H. 1972, Act 9. pp. 32-142.
     