
    TERRITORY OF HAWAII v. M. ABREU.
    Appeal from District Court op Honolulu.
    Submitted April 3, 1901.
    Decided May 27, 1901.
    Frear, G.J., Galbraith and Perry, JJ.
    If the prosecution undertakes, in charging an offense, to recite the statute or section thereof in violation of which the offense is committed and makes the recital incorrect, such mis-recital is a fatal defect, at least in a case Where, if the portion of the charge referring to the statute is stricken out, a sufficient and direct statement of an offense does not remain.
   OPINION OP THE COURT BY

PERRY, J.

In the District Court of Honolulu the following charge was-entered against the defendant: “Violating Section 3, Act 34, Session Laws of 1898, in Honolulu, Oahu, December 26, 1900,. by selling a certain article of food, to-wit, milk, which has been substituted in part with.a cheaper substance, to-wit, waterV To this charge the defendant demurred, on the ground that the-same does not “state facts sufficient to constitute any crime or-offense against any law of the Territory of Hawaii, and particularly not against Section 3 of Act 34 of the Session Laws of' 1S98.” The demurrer was overruled and the defendant tried,, convicted and sentenced. The case comes to this Court on-defendant’s appeal on points of law, only one of which points, however, need be here stated and considered, to-wit: “That the complaint and charge, made and entered herein against defendant, do not state facts sufficient to constitute any crime or offense against any law of the Territory of Hawaii, and particularly not against Section 3 of Act 34 of the Session Laws of 1898.”

J. W. Gathcart, Deputy Attorney-General, for the prosecution

I. M. Long for the defendant.

Section 3 of Act 34 of the Laws of 1898, merely defines the term “adulterated” as used in the Act. It does not describe any offense or prohibit the commission thereof or prescribe any penalty for such commission. The description of the offense of selling adulterated drugs or articles of food and the statement of the penalty therefor are contained in other sections of the Act. In some instances, matter unnecessarily alleged may be regarded as surplusage; but in this case, in view of the form of the charge, we are of the opinion that the reference to the particular section of the statute cannot be so regarded and that the mis-recital is fatal. See 1 Bishop’s New Grim. Procedure, Sec. 608; 20 Encycl. PI. & Pr., 602, and Gould’s Pleading, Sec. 171. The form used makes the violation of the particular section the substantive portion of the charge, the second portion beginning with the word “by” merely stating how the section was violated. The acts complained of are not set forth positively and directly, and if the reference to the section and statute were stricken out, no sufficient charge would remain.

The appeal is sustained and the defendant discharged.

Robertson & Wilder for plaintiff.

Holmes & Stanley and L. A. Dickey for Augusta Johansen.  