DISSENTING OPINION OF
GALBRAITH, J.I cannot concur in the foregoing opinion and judgment of the majority of the Court.
Section 255, under which the charge is laid is found in Chapter 29, Penal Laws, entitled, “Obstructing the Course of Justice” and reads as follows: “Whoever corruptly gives or promises to any executive, legislative or judicial officer, or to any master in chancery, juror, appraiser, referee, arbitrator or umpire, any gift, gratuity, service or benefit, with intent to influence his vote, judgment, opinion, decision or other acts as such in any case, question, proceeding or matter pending, or that may by law come or be brought before him in his capacity as aforesaid, shall be punished by imprisonment at hard labor not • more than two years, or by fine not exceeding five hundred dollars.”
The charging part of the indictment alleges that the defendant “unlawfully, feloniously and corruptly, to one Emil Cornelius Peters, then and there being an executive officer of the Territory of Hawaii, to-wit: a deputy Attorney General of the Territory of Hawaii, with intent in him the said Taing Kai thereby to influence him, the said Emil Cornelius Peters, in his acts as such deputy Attorney General in proceedings that might by law come 'and be brought before him, the said Emil Corne*618lius Peters, in his capacity as said deputy Attorney General* to-wit: criminal prosecutions by the Territory of Hawaii against the said Taing Kai, and others associated with him, the said Taing Kai, whose names are to the grand jurors unknown, for the offense of maintaining and conducting at Honolulu* Island of Oahu, Territory of Hawaii, a lottery known as paka pio, a sum of money, to-wit: the sum of fifteen hundred dollars, as a gift and gratuity and benefit did promise contrary to the form of the statute in such case made and provided.”
Evidently" it was intended to charge that deputy Attorney General Peters is an executive officer of the Territory and that the defendant intending to influence him in his official capacity in certain criminal prosecutions by the Territory against the defendant and others did promise a gift or gratuity. This is certainly the most favorable light in which this indictment can be viewed still it does not charge a crime under the law of this-Territory or an attempt to obstruct “the Course of Justice”. The defendant might have admitted the truth of every thing charged in the indictment and still insisted that he was guiltless of any offense against the law. He had a right to promise the deputy Attorney General a gift or gratuity with intent to influence his official conduct provided he did not intend thereby to seduce him from the performance of some official duty. This indictment fails to allege whether or not the defendant intended to induce the deputy attorney general to be good to him and to pursue his enemies in these criminal proceedings, either pending or impending, or whether he wanted to induce the deputy Attorney General to dismiss or refrain from prosecuting proceedings against the defendant and his countrymen and to prosecute with vigor “the stranger within our gates” or the white man caught tempting the Chinese goddess of chance. In other words it fails to charge the defendant with any criminal act.
This indictment has the same weakness and is bad for the same reasons as that in the case of The Republic v. Young Hee, 10 Haw. 114, 116. What the Court said in that case is applicable to this. “The proceeding or matter should be described. *619The court should be apprised of the nature of the matter in reference to which the acts of the officer were intended to be influenced by the bribe. The acts to be criminal should be of a nature to pervert or obstruct the course of justice if the officer ivas influenced by the bribe. The indictment should have set them out, for if they were not to accomplish a corrupt purpose it would not be criminal to give a gratuity to influence the officer to do them or to refrain from doing them. The words of the statute have been followed in the indictment, but they are general words and require a fuller statement of the nature of the purpose which the bribe was intended to subserve.”
The circuit court was clearly in error in charging the jury that the deputy Attorney General was an “executive officer” within the meaning of Section 255 Penal Laws. One of the authorities cited in support of the instruction, State v. Currie, 35 Tex. 17, holds that a County Attorney under a statute against bribing “legislative, executive and judicial officers”, is a judicial officer. Under our statute the deputy Attorney General has no duties prescribed by law. He is a deputy to the Attorney General who is responsible “for all the acts of such deputy or deputies”. (Sec. 1021, C.L.) We know as a matter of law that no criminal prosecutions can “by law come or be brought before him in his official capacity”. He is not a judicial officer. When he appears for the Territory in criminal cases these proceedings cannot be said to “come or be brought before him”. If he turns detective or policeman or constable and hunts up violators of the law and files complaints in the District Court he would not then be working as deputy Attorney Genera] and even then these proceedings would not “'come or be before him” as deputy Attorney General. They would be before the District Court and at no time in the history of their course from the first arrest until the jail door closes behind the culprit could the proceedings properly be said to be before the deputy Attorney General. The deputy Attorney General is not an officer with independent duties to perform. He is a subordinate and is given no authority to act independently. *620líe acts for and under the Attorney General who is responsible for his acts. The promising a gift or gratuity to the •deputy Attorney General could not possibly constitute a crime under this section of the statute.
In the third instruction to the jury the Circuit Court extended the issues and submitted to the jury for determination issues not presented by the indictment. This instruction reads:
“I instruct you, Gentlemen of the Jury, that the crime as set ■forth in this indictment is complete without the tender or the production of the money, and the party who offers or promises the same is guilty whether the money constituting the bribe is to come from himself or from 'another: therefore, if you believe from the evidence, beyond a reasonable doubt, that Taing Kai promised to Mr. Peters, as deputy Attorney General, the sum of •fifteen hundred dollars a week or any other sum in return for which the Attorney General’s office or Mr. Peters as deputy Attorney General, was to insure the said Taing Kai or his associates from prosecution or punishment for conducting a lottery, or the game of paka pio, then the defendant is guilty as charged in the indictment, and it is your duty to convict him.” This instruction charges the defendant with a crime if the indictment ■does not. The indictment did not charge the defendant with promising a gift or gratuity to the deputy Attorney General with intent to influence the “action of the Attorney General’s ■office”, or with the understanding that Mr. Peters, or any one else “was to insure” the defendant from “prosecution or punishment”, nor did it charge that the defendant offered a gratuity •or gift of fifteen hundred dollars per week, still the jury are instructed if they believe from the evidence beyond a reasonable ■doubt that he did this it was their duty to find him guilty. Under this instruction what became of the constitutional guarantee that “No person shall be held to answer for an * * * infamous crime unless on a presentment or indictment of a grand jury” ? It was certainly frittered away, and the defendant was held to answer and possibly was convicted of an infamous crime *621on charges not contained in ran indictment but in the instruction of a Circuit Judge to tbe jury. For the errors of this, charge alone the judgment of conviction should be set aside and the defendant discharged.
I am impressed with the conviction that there was great haste-exhibited to land this Chinaman in prison for some undisclosed reason. The indictment was returned May 14, charging the-alleged offense May 10, and he was tried and convicted May 27. Whether or not he was ever arraigned or ulead to the indictment the record here does not disclose. At any rate there seems to-have been a prevalent desire to speed the defendant along to the reef. The counsel who then appeared for him offered very little resistance to the fulfilment of this desire, in fact the inference-that he shared in the desire might be justified from his line of defense and the feebleness with which the same was presented.
It may be important to the public service and to the safety and security of the Attorney General’s department that a “horrible example” be made of this defendant in order to deter others from wallring in his steps but none of these things in my opinion are of so great importance as the orderly administration, of the law, the proper conviction of those guilty of crime according to the well settled rules of procedure.
This defendant was not charged in the indictment with a. crime, although he was so charged in one of the court’s instructions to the jury, and therefore could not have been properly convicted. He having been improperly convicted and sentenced to penal servitude this Court ought to set aside such conviction and sentence and restore him to liberty again.