
    IN THE MATTER OF THE APPLICATION OF GEORGE TITCOMB, for a Writ of Habeas Corpus.
    Appeal prom Circuit Judge Whiting.
    Hearing, April 24, 1893.
    Decision, May 3, 1893.
    Judd, C.J., Bickerton and Feear, JJ.
    There is no offense known to our law as “an -assault with a dangerous weapon.” A verdict, the mittimus corresponding, finding the defendant guilty of such an offense, is void. The sentence must be void upon its face in order to entitle the petitioner to a discharge on “habeas corpus.”
    If a sentence within the jurisdiction of the Court and regular on its face, be found by an inspection of the record to he not responsive to the indictment, it is voidable and can only he set aside on appeal or by a writ of error, and is not cognizable on “habeas corpus.”
   Opinion of the Court, by

Judd, C.J.

This is an appeal from Judge Whiting of the Circuit Court, First Circuit, refusing to discharge the petitioner from the custody of the Marshal, the case, in his opinion, disclosing errors not cognizable on habeas corpus. Tbe petition sets forth that petitioner was, at tbe March Term of tbe Circuit Court, Fifth Circuit, sentenced to pay a fine of $25 and be imprisoned at bard labor for tbe term of two years for tbe offense of assault with a dangerous weapon. Tbe mittimus under which tbe petitioner is held describes tbe offense an “ assault with a dangerous weapon.” Tbe petition avers that bis imprisonment and restraint are illegal because there is no such offense known to our law. Tbe return by tbe Marshal to tbe writ is that tbe petitioner was convicted before tbe said Circuit Court “for that, being armed with a dangerous weapon, to wit, a loaded pistol, be did assault certain persons (naming them) with intent to kill and murder,” etc. Tbe record stows feat fee indietment was for' the offense set; forth in the return. The written, verdict of the Jury is, u We find the defendant guilty of the offense of an assault with a dangerous- weapon,” or-,, as it is-- literally, “ a weapon eapalble ©f taking life.” Ke hooholo- nei makou ua ho-ahewaia ka mea i hoopxiía no ka hewa hoao © hoeha me ka mea ku i ka make.”)

The clerk entered upon Ms- minutes- that fee verdiet was w guilty as- charged.”

The first question to be considered is, which is the verdict? —that presented by the Jury, or as entered by the clerk 2? We have no hesitation in holding feat the former must be considered as the verdict. By our present practice the-verdict is written, handed by the foreman of the Jury to- the Court, who- reads- it aloud to them and asks if they assent to it. This- is- a public- act, and it is- required by our statutes that the Jury shall find a verdict. It need not be in writing, but the present practice so- requiring it is proper and not inconsistent with the law. The entry of the verdict by the slerk as understood by Mm is but his- private interpretation of fee meaning ©£ the verdict, and cannot be held to contradict the written verdict passed up by the foreman. It might be otherwise- if the verdict was- oral, recorded by the clerk and then read by him from Ms minutes- to- the jury and assented to by them.

We pass now to the next question. Does this verdict disclose an offense known to the law ? The defendant was indicted for an offense described in Section 5 of Chapter IX. of fee Penal Code, to- wit, an assault by a person armed witb a dangerous weapon upon another “ wife intent to commit burglary, robbery, manslaughter or murder,, or other crime of such character.”

The verdict of the jury found fee- defendant guilty of an* K assault with a weapon dangerous to life.” It leaves out fee- essential ingredient of the offense — the intent to- commit fee- crime, which- in this ease was-, as by the indictment, murder.. The verdict was-a special one, undertaking, to describe-the particular offense of which the jury found the defendant guilty. If the verdiet read, -“We find the defendant guilty as charged ” there would be no difficulty, and the mittimus would describe the offense as set out in the indictment. It is suggested that the jury Intended to find the defendant guilty of the offense described in Section 8 of said Chapter IX. of the Penal Code, to wit, of an assault upon another “with a knife, sword cane or -any other weapon obviously and imminently dangerous to life'55- — -no intent to do anything more being found. But the objection to this view Is, that “ an assault by a person armed with a dangerous weapon* cannot be considered as identical with “ an assault with a weapon obviously and imminently dangerous to life,-55 as the latter weapon would require no proof of its character, sines an inspection of it or a description of it would make its character apparent to the jury, whereas the term, “ a -dangerous weapon55 would include a larger class -of weapons, •some of which would not be obviously and imminently dangerous to life. Moreover, it is not required of necessity that -the assault under Section 5 shall be shown to have been eom- - committed with the “dangerous weapon'55 with which the defendant is armed. And eertainly in the ease where the assault is made with intent to commit burglary or robbery it might well be that though .armed with a dangerous weapon the assailant might not use it in making the assault. We d© not consider it a refinement of language to hold that a verdict of guilty of 'an assault with a weapon dangerous to life would not answer the description of the offense of an assault with a weapon obviously and imminently dangerous to Ufa. And it follows that the mittimus does not disclose an offense known to the law. If it did and found the defendant guilty of an assault with a weapon obviously and imminently dangerous to life, we would not be authorized on proceedings in habeas corpus to inquire further into the matter -and ascertain whether such verdict was responsive to the indictment, Tbe verdict as rendered is void. The verdiet above suggested would be voidable ,and if, though good upon its face and being within the jurisdiction of the Court, a comparison of the indictment with the sentence shows that the sentence is-not responsive to it, the Court would be authorized on error to reverse it. This, we apprehend, is the distinction between defects whieh can he inquired iuto on habeas corpus and those errors whieh are cognizable only by appeal or by writ of error. “A writ of habeas carpus cannot be made to perform the functions of a writ of error. To warrant the discharge of the petitioner, the sentence under which he is held must be not merely erroneous and voidable, but absolutely void.” Ex parte Reed, 100 U. S. 23. This Court, per Preston, J., held in the case of Piipiilani, 7 Haw. 104, as follows-: “We are of the opinion that when a mittimus is good upon its faeer and the prisoner is in execution under a conviction, a writ of habeas corpus should not issue, but that the prisoner should be confined to bis right of appeal and that a conviction or judgment cannot he attacked in a proceeding on habeas corpus if jurisdiction appears by the record.” “We think that in all cases in which- the mittimus is insufficient upon its face, the discretion to issue the writ should be exercised, but that it is only when the record does not supply the-omission that the prisoner shall be discharged.”

A. S. Eart/well, for petitioner.

Attorney-General O. Smith, for respondent...

In the- ease before us the record corresponds with themittimus, and as both are illegal the petitioner is entitled to-his discharge. We wish to add- that we do not hold that if a person is charged under Section 5 of the Chapter on assaults (Chap. 9 Penal Code) the jury would be warranted in finding him guilty of the offense described in Section 8, as it does, not appear to us that these are different degrees of the same offense,, bub substantially different offenses. In the assault under Section 5, the intent to commit a greater crime is an essential ingredient. Under Section 8, the character of the instrument with whieh the assault is made is essential, and the intent with which the assault is made is not essential.

Let the prisoner be discharged.  