
    TERRITORY OF HAWAII v. WONG TIM.
    Exceptions from Circuit Court, Fourth Circuit.
    Submitted January 9, 1905.
    Decided January 27, 1905.
    Frear, C.J., Hartwele and Hatch, JJ.
    
      Practice — conditional withdrawal of plea of not guilty in order to file plea in abatement.
    
    The defendant, January 19, had been arraigned and had pleaded not guilty to an indictment charging him with gross cheat. February 3 his attorney moved for leave to withdraw the plea in order "to file'a plea in abatement,'stipulating that if the plea in abatement -should be overruled he would be “ready immediately to go to trial upon the merits- of -this cause.” Upon the overruling of the plea' in abatement the case went to trial, defendant’s attorney malting no objection, and the case was tried on the theory that the defendant had pleaded not guilty. Held: That under the stipulation and in conformity with the plain understanding of the court and the parties the plea of not guilty was re-instated.
    
      Id. — instructions given for defendant with the remarle of the judge that he gave them “hut not as the law of this country.” '
    
    The defendant asked for four instructions, of which the trial judge remarked to the jury, “The defendant has asked me to giv9 you certain instructions which I shall give, but not as the law of this country.” Held: That the instructions which were given with this ungracious and inappropriate remark were inapplicable to the facts of the case and therefore ought not to have been given at all; but the jury might have inferred from the remark that the law was directly the other way and that a verdict of guilty would be proper based upon a broken promise to pay, and therefore that a new trial should be ordered.
   OPINION OF THE COURT BY

HARTWELL, J.

The defendant was indicted and found guilty on a charge of gross cheat. Neither the indictment nor a copy of it appears in the papers filed with the bill of exceptions. The report of the testimony, however, shows that the alleged gross cheat consisted in the defendant borrowing of one Yee Leong $150, giving his promissory note therefor upon his assurance to the lender that he (the defendant) owned a building which he was going to sell, and from the proceeds of which he told the lender that he would repay the loan. The building was sold and the money was not paid. The defendant did not own the building, having already sold it. The first exception relied on is that the court proceeded to trial without taking defendant’s plea. The defendant was arraigned at the January, 1903, Term of the court. A plea to the jurisdiction was filed and overruled. Then a plea of not guilty was entered January 19. February 3 defendant’s attorney moved for leave to withdraw the plea in order to file a plea in abatement, the defendant’s attorney making an affidavit that the defendant had pleaded nob guilty without his (the attorney’s) knowledge or advice, and stipulating in his affidavit that if the ple'a in abatement should be overruled he would be “ready immediately to go to trial upon the merits of this cause.” Thereupon the plea in abatement was filed, argued and overruled. The case was then tried February 16, defendant’s attorney going to trial without objection, raising no question that the defendant had not pleaded, and the case was tried on the theory, that the defendant had pleaded not guilty. The second exception relied on is that the court gave to the jury certain instructions requested by the defendant, remarking, “The defendant has-asked me to give you certain instructions which I shall give, but not as the law of this.country.” The instructions were.as follows :

“1st. If you find from the evidence that Yee Leong advanced the money to the defendant with, the understanding that the money was to be repaid out of a certain fund and that Yee Leong relied solely on that representation, then you must acquit the defendant.
“2nd. The promises of future payment of a present loan cannot form the basis of a charge of gross cheat.
“3rd. The false representations amounting to mere promises, though they induced the defrauded party to part with his property, are not false pretenses for they have referred to future events.
“4th. If you find from the evidence that Yee Leong loaned money to the defendant and took a note therefor, relying upon the general ability of the defendant to pay the amount of the note, and did not rely upon the securities of the house and lease in question, then your verdict will be of acquittal.”

The first exception is overruled. It is evident that all concerned regarded the plea of guilty as withdrawn solely for the purpose of presenting the plea in abatement, and went to trial on the understanding that the plea of guilty was re-instated on the denial of the motion of the plea in abatement. “It would be sacrificing substance to form not to give effect to the transaction according to the plain understanding of the court and the parties.” People v. Bradner, 107 N. Y. 1. “This stipulation reinstates the plea of not guilty, and the trial was regular.” Morton v. People, 47 Ill. 468. “The defendant has had the full benefit of the plea as if it had been again formally entered.” Hensche v. People, 16 Mich. 46.

W. S. Fleming, Assistant Attorney General, for the Territory.

Thayer & Hemenway for defendant.

Tbe second exception must be sustained. We think that tbe instructions which were requested were inapplicable to tbe facts of tbe case and therefore ought not to have been given, but tbe giving of them with tbe ungracious and inappropriate remark that they were not given “as tbe law of this country” might well have bad a very different effect upon tbe jury from merely declining to give them. Tbe jury might have inferred from that remark that tbe law was directly tbe other way and that a verdict of guilty would be proper whether based upon tbe broken promise to pay or tbe false pretense that be owned tbe building. Tbe evidence that tbe defendant obtained tbe money after promising to repay it would not have justified a verdict of guilty, and yet tbe effect of tbe judge’s remark might have been to lead tbe jury to understand that a verdict on that ground would be correct.

Tbe exceptions are sustained and a new trial is ordered.  