State v. Jendrusch, 567 P.2d 1242 (Haw. 1977). · Go Syfert
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State v. Jendrusch, 567 P.2d 1242 (Haw. 1977). Cases Citing This Book View Copy Cite
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cited 6× by 2 distinct cases · …the failure of the complaint to set forth this essential element as defined by the statute or to describe it with sufficient specificity so as to establish penal liability rendered it fatally defective.
cited 4× by 2 distinct cases · …not only does fail to state an offense, but it also fails to meet the requirement that an accused must be informed of the nature and cause of the accusation against him.
662 citation events (532 in the last 25 years) across 4 distinct courts.
Strongest positive: State v. Yamamoto. (haw, 2012-04-12)
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978 2002 2026
Top citers, strongest first. 50 distinct citers.
examined Cited as authority (verbatim quote) State v. Yamamoto. (2×) also: Cited as authority (quoted)
Haw. · 2012 · signal: see · quote attribution · 2 verbatim quotes · confidence high
the failure of the complaint to set forth this essential element as defined by the statute or to describe it with sufficient specificity so as to establish penal liability rendered it fatally defective.
examined Cited as authority (verbatim quote) State v. Nesmith (16×) also: Cited as authority (quoted), Cited as authority (rule), Cited "see", Cited "see, e.g."
Haw. · 2012 · signal: see · quote attribution · 6 verbatim quotes · confidence high
the failure of the complaint to set forth this essential element as defined by the statute or to describe it with sufficient specificity so as to establish penal liability rendered it fatally defective.
examined Cited as authority (verbatim quote) State v. Tominiko (8×) also: Cited "see", Cited "see, e.g."
Haw. · 2011 · signal: see · quote attribution · 2 verbatim quotes · confidence high
not only does fail to state an offense, but it also fails to meet the requirement that an accused must be informed of the nature and cause of the accusation against him.
examined Cited as authority (verbatim quote) State v. Sprattling (18×) also: Cited as authority (rule), Cited "see", Cited "see, e.g."
Haw. · 2002 · signal: see · quote attribution · 2 verbatim quotes · confidence high
this requirement may not be waived or dispensed with
examined Cited as authority (quoted) State v. Walker (2×)
Haw. App. · 2011 · quote attribution · 2 verbatim quotes · confidence low
in jendrusch, we held that the failure to allege an essential element of an offense made a charge 'fatally defective.
examined Cited as authority (rule) State v. Smith. Concurring and Dissenting Opinion of McKenna, J. ICA s.d.o., filed 01/15/2025 [ada], 155 Haw. 257. Application for Writ of Certiorari, filed 03/18/2025. S.Ct. Order Accepting Application for Writ of Certiorari, filed 04/29/2025 [ada]. (6×)
Haw. · 2025 · confidence medium
To give effect to that purpose, “[t]he accusation must sufficiently allege all of the essential elements of the offense charged. . . . [T]he omission of an essential element of the crime charged is a defect in substance rather than of form.” State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977) (citations omitted). “[A] charge defective in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, for that would constitute a denial of due process.” Nesmith, 127 Hawaiʻi at 52, 276 P.3d at 621 (quoting State v. Mita, 124 Hawaiʻi…
discussed Cited as authority (rule) State v. Agtina
Haw. App. · 2025 · confidence medium
Generally, "where a statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient." Tran, 154 Hawai#i at 226, 549 P.3d at 311 (brackets omitted) (quoting State v. Jendrusch, 58 Haw. 279, 282 , 567 P.2d 1242, 1245 (1977)).
discussed Cited as authority (rule) State v. Tran.
Haw. · 2024 · confidence medium
Generally, “[w]here [a] statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient.” State v. Jendrusch, 58 Haw. 279, 282 , 567 P.2d 1242, 1245 (1977).
cited Cited as authority (rule) State v. Blyenburg.
Haw. · 2022 · confidence medium
Charging documents “must sufficiently allege all of the essential elements of the offense charged.” See State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977).
discussed Cited as authority (rule) State v. Beck
Haw. App. · 2022 · confidence medium
Terr. 1945) (holding that, while a prosecutor's concession of error is "entitled to great weight," before a conviction is reversed, "it is incumbent upon the appellate court to ascertain first that the confession of error is supported by the record and well- founded in law and to determine that such error is properly preserved and prejudicial"). "[A]n oral charge or complaint must sufficiently allege all of the essential elements of the offense." State v. 2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER Sprattling, 99 Hawai‘i 312, 318, 55 P.3d 276, 282 (2002) (internal q…
discussed Cited as authority (rule) State v. Jardine. (2×)
Haw. · 2022 · confidence medium
In considering whether a charging document complies with this constitutional requirement, this court has stated that It is well settled that an “accusation must sufficiently allege all of the essential elements of the offense charged,” a requirement that “obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint[.]” State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977).
discussed Cited as authority (rule) State v. Slavik.
Haw. App. · 2021 · confidence medium
A conviction based upon a defective charge "cannot be sustained, for that would constitute a denial of due process." State v. Wheeler, 121 Hawai#i 383, 391, 219 P.3d 1170, 1178 (2009) (quoting State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977)).
discussed Cited as authority (rule) State v. Kaeo.
Haw. App. · 2021 · confidence medium
Insufficient evidence of Kaeo's intent to cause the result prohibited by the statute to the general public In State v. Jendrusch, 58 Haw. 279, 281-82 , 567 P.2d 1242, 1244 (1977),4 the supreme court held: 4 In Jendrusch, the supreme court reversed the defendant's disorderly conduct conviction and remanded for a dismissal of the complaint that did not contain "the averment that defendant's conduct resulted or threatened to result in physical inconvenience" and only stated "with intent to cause public inconvenience . . . ." 58 Haw. at 280, 567 P.2d at 1243 .
discussed Cited as authority (rule) State v. Salvas
Haw. App. · 2021 · confidence medium
Whether the charge is stated orally or in a written information, indictment, or complaint, it "must sufficiently allege all of the essential elements of the offense charged[.]" State v. Wheeler, 121 Hawai#i 383, 391, 219 P.3d 1170, 1178 (2009) (quoting State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977)).
discussed Cited as authority (rule) State v. Zowail.
Haw. · 2020 · confidence medium
State v. Elliott, 77 Hawai#i 309, 311, 884 P.2d 372, 374 (1994) (“[W]hether an accusation is in the nature of an oral charge, information, indictment, or complaint, [] the omission of an essential element of the crime charged is a defect in substance rather than of form.” (quoting State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977))).
discussed Cited as authority (rule) State v. Oki
Haw. App. · 2020 · confidence medium
"Where the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient." State v. Jendrusch, 58 Haw. 279, 282 , 567 P.2d 1242, 1245 (1977); see Schwartz v. State, 136 Hawai#i 258, 286, 361 P.3d 1161, 1189 (2015).
discussed Cited as authority (rule) State v. Baker.
Haw. · 2020 · confidence medium
And generally, “[w]here the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a 13 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** charge drawn in the language of the statute is sufficient.” Id. at 393, 219 P.3d at 1180 (alteration in original) (quoting State v. Jendrusch, 58 Haw. 279, 282 , 567 P.2d 1242, 1245 (1977)).
cited Cited as authority (rule) State v. Kauhane.
Haw. · 2019 · confidence medium
State v. Mita, 124 Hawai i 385, 390, 245 P.3d 458, 463 (2010); State v. Jendrusch, 58 Haw. 279, 283 , 567 P.2d 1242, 1245 (1977).
discussed Cited as authority (rule) State v. Tsujimura. (2×)
Haw. · 2017 · confidence medium
It is 19 ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER*** settled law that an “accusation must sufficiently allege all of the essential elements of the offense charged,” a requirement that “obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint.” State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977).
discussed Cited as authority (rule) State v. Pacquing.
Haw. · 2016 · confidence medium
Generally, “[wjhere the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient.” State v. Wheeler, 121 Hawai'i 383, 393 , 219 P.3d 1170, 1180 (2009) (alteration in original) (quoting State v. Jendrusch, 58 Haw. 279, 282 , 567 P.2d 1242,1245 (1977)).
discussed Cited as authority (rule) State v. Paris.
Haw. · 2016 · confidence medium
I disagree with the Majority that the State was required to include the statutory definition of “custody" in the charge. “[Wjhere the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient.” State v. Wheeler, 121 Hawai'i 383, 393 , 219 P.3d 1170, 1180 (2009) (quoting State v. Jendrusch, 58 Haw. 279, 282 , 567 P.2d 1242, 1245 (1977).
discussed Cited as authority (rule) State v. Toma (2×)
Haw. · 2015 · confidence medium
The court cited to State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977), a case decided two years before Apao, for the 15 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER *** rule that “an ‘accusation must sufficiently allege all of the essential elements of the offense charged,’ a requirement that ‘obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint[.]’” Wheeler, 121 Hawai#i at 391, 219 P.3d at 1178 .
examined Cited as authority (rule) Schwartz v. State. (7×) also: Cited "see"
Haw. · 2015 · confidence medium
Id. at 281-82 , 567 P.2d at 1244-45 (noting that the complaint failed to allege the prescribed intent and that the relevant speech was likely to provoke a violent response).
discussed Cited as authority (rule) State v. Vaimili.
Haw. · 2015 · confidence medium
Discussion A. Disjunctive Charging Language In Codiamat, 131 Hawai'i 220 , 317 P.3d 664 , this court recognized that “states of mind may be charged disjunctively,” and “acts may be charged disjunctively when the words used charge similar or analogous forms of conduct that are codified in a single subsection of a statute.” 131 Hawai'i at 227 , 317 P.3d at 671 (citing State v. Batson, 73 Haw. 236, 248 , 831 P.2d 924, 931 (1992); State v. Jendrusch, 58 Haw. 279, 280 , 567 P.2d 1242, 1243-44 (1977); State v. Nesmith, *500 127 Hawai'i 48, 51 , 276 P.3d 617, 620 (2012)).
examined Cited as authority (rule) State v. Codiamat. (17×) also: Cited "see"
Haw. · 2013 · confidence medium
Where a statute specifies several ways in which its violation may occur, the 8 (...continued) risk thereof, he: . . . . (b) Makes unreasonable noise; or (c) Makes any offensively coarse utterance, gesture, or display, or addresses abusive language to any person present, which is likely to provoke a violent response[.]” Jendrusch, 58 Haw. at 280 , 567 P.2d at 1243 (emphasis omitted) (quoting HRS § 711-1101). 9 The complaint read: You [Jendrusch] are hereby charged that in the City and County of Honolulu, State of Hawaii, on or about the 14th day of September, 1974, with intent to cause publi…
discussed Cited as authority (rule) State v. Basnet.
Haw. · 2013 · confidence medium
Second, in the event of retrial, we hold that the charge was sufficient inasmuch as it “fully defin[ed] the offense in unmistakable terms readily comprehensible to persons of common understanding.” State v. Jendrusch, 58 Haw. 279, 282 , 567 P.2d 1242, 1245 (1977).
discussed Cited as authority (rule) State v. Apollonio.
Haw. · 2013 · confidence medium
Cummings relied largely on this court’s opinion in State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977), for the proposition that “the omission of an essential element of the crime charged is a defect in substance rather than of form.” Cummings, 101 Hawai'i at 142 , 63 P.3d at 1112 .
discussed Cited as authority (rule) State v. Gonzalez.
Haw. · 2012 · confidence medium
(Citing State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977).) Defendant also argues that “the State’s failure to allege the state of mind amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, for that would constitute a denial of due process.” (Quoting State v. Elliott, 77 Hawai'i 309, 311 , 884 P.2d 372, 374 (1994).) (Punctuation omitted.) B. 1.
discussed Cited as authority (rule) State v. Higa
Haw. App. · 2012 · confidence medium
There are several accepted bases for granting a motion to dismiss indictment, see, e.g., Hawaii Rules of Penal Procedure (HRPP) Rule 6(b)(2) (objections to the grand jury array or qualification of individual grand juror); State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977) (deficiencies in the charge); State v. Chong, 86 Hawai'i 282, 289 , 949 P.2d 122, 129 (1997) (“prosecutorial misconduct or other circumstances which prevent the exercise of fairness and impartiality by the grand jury”).
discussed Cited as authority (rule) State v. Taylor (2×)
Haw. · 2011 · confidence medium
A. Taylor's indictment for theft was supported by probable cause It is undisputed that Taylor's indictment is facially valid because it alleged all essential elements of the charged offense, and Taylor does not argue that he was not informed of the "nature and cause of the accusation against him[.]" See State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977) (internal quotation marks and citation omitted); State v. Stan's Contracting, Inc., 111 Hawai`i 17, 34, 137 P.3d 331, 348 (2006) (internal citation omitted).
discussed Cited as authority (rule) State v. Nesmith (2×)
Haw. App. · 2011 · confidence medium
This court has recognized that “ ‘[a] charge defective in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, for that would constitute a denial of due process.’ ” Id. at 391 , 219 P.3d at 1178 (quoting State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977)).
examined Cited as authority (rule) State v. Mita (10×) also: Cited "see"
Haw. · 2010 · confidence medium
This court has recognized that "`[a] charge defective in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, for that would constitute a denial of due process.'" Id. at 391, 219 P.3d at 1178 (quoting State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977)).
examined Cited as authority (rule) State v. Hitchcock (5×)
Haw. · 2010 · confidence medium
VI. "[I]t is well settled that an `accusation must sufficiently allege all of the essential elements of the offense charged,' a requirement that `[applies] whether an accusation is in the nature of an oral charge, information, indictment, or complaint.'" State v. Ruggiero, 114 Hawai'i 227, 239 , 160 P.3d 703, 715 (2007) (quoting State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977)) (other citations omitted).
discussed Cited as authority (rule) State v. MITA
Haw. App. · 2010 · confidence medium
"Where the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient." Wheeler, 121 Hawai`i at 393, 219 P.3d at 1180 (quotation marks and brackets omitted) (quoting State v. Jendrusch, 58 Haw. 279, 282 , 567 P.2d 1242, 1245 (1977)).
examined Cited as authority (rule) State v. Wheeler (3×)
Haw. · 2009 · confidence medium
Location is an element of the charge of GVUII This court has stated that It is well settled that an “accusation must sufficiently allege all of the essential elements of the offense charged,” a requirement that “obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint[.]” State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977).
discussed Cited as authority (rule) State v. Jess (2×)
Haw. · 2008 · confidence medium
A charge defective in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, for that would constitute a denial of due process. '" (Quoting State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977).) (Emphasis added.)). [14] The Apao proposition was implicitly grounded in article I, section 10 of the Hawai`i Constitution, insofar as we relied on a federal decision interpreting the fifth amendment's grand jury clause.
examined Cited as authority (rule) State v. Kekuewa (10×) also: Cited "see"
Haw. · 2007 · confidence medium
It is a well-settled principle that a criminal defendant’s conviction will be reversed where the complaint, indictment, oral charge, or information is defective in such a way that it fails to state an offense: It is well settled that an “accusation must sufficiently allege all of the essential elements of the offense charged,” a requirement that “obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint[.]” State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977)[; accord State v. Israel, 78 Hawai'i 66, 69-70 , 890 P.2d 303, 306-…
examined Cited as authority (rule) State v. Ruggiero (14×) also: Cited "see"
Haw. · 2007 · confidence medium
The complaint charging Ruggiero with a violation of HRS § 291E-61 was silent with respect to the attendant circumstance of any prior conviction, see supra note 3, and, therefore, was insufficient as a matter of law in charging a violation of HRS § 291E-61(a) and (b)(2), because [i]t is well settled that an "accusation must sufficiently allege all of the essential elements of the offense charged," a requirement that "obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint[.]" State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977)[; ac…
discussed Cited as authority (rule) State v. Kekuewa
Haw. App. · 2006 · confidence medium
“It is well settled that an ‘accusation must sufficiently allege all of the essential elements of the offense charged,’ a requirement that ‘obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint.’” Id. (original brackets, citation and block quote format omitted) (quoting State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977)). “ ‘A charge defective in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, for that would constitute a denial of due process.’ ” Id. (c…
discussed Cited as authority (rule) State v. Domingues (2×)
Haw. · 2005 · confidence medium
It is fundamental that, as a matter of basic due process, “[a] defendant must be put on sufficient notice of the ‘nature and cause of the accusation’ with which he is charged.” State v. Lemalu, 72 Haw. 130, 134 , 809 P.2d 442, 444 (1991) (quoting State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1245 (1977)) (internal quotation signals omitted).
examined Cited as authority (rule) State v. Cummings (8×) also: Cited "see"
Haw. · 2003 · confidence medium
DISCUSSION It is well settled that an "accusation must sufficiently allege all of the essential elements of the offense charged," a requirement that "obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint[.]" State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977)[; accord State v. Israel, 78 Hawai`i 66, 69-70, 890 P.2d 303, 306-07 (1995); State v. Elliott, 77 Hawai`i 309, 311, 884 P.2d 372, 374 (1994)].
discussed Cited as authority (rule) State v. Cordeiro (2×)
Haw. · 2002 · confidence medium
See State v. Israel, 78 Hawai`i 66, 73, 890 P.2d 303, 310 (1995); State v. Jendrusch, 58 Haw. 279, 282 , 567 P.2d 1242, 1245 (1977); State v. Tuua, 3 Haw.App. 287, 293 , 649 P.2d 1180, 1184-85 (1982).
discussed Cited as authority (rule) State v. Lagat (2×)
Haw. · 2002 · confidence medium
I, § 14); [3] see also State v. Daly, 4 Haw.App. 52, 54 , 659 P.2d 83, 85 (1983) (explaining that, for an indictment to be valid, it must, inter alia, "`apprise[ ] the defendant of what he [or she] must be prepared to meet'") (quoting Russell v. United States, 369 U.S. 749, 763-64 , 82 S.Ct. 1038 , 8 L.Ed.2d 240 (1962)); State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977) (finding complaint defective because it "fail[ed] to meet the requirement that an accused must be informed of the nature and cause of the accusation against him [or her]" (internal quotation marks and citation …
discussed Cited as authority (rule) State v. Balanza
Haw. · 2000 · confidence medium
We have previously held that, “‘[w]here the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient.’” State v. Moore, 82 Hawai'i 202, 216 , 921 P.2d 122, 136 (1996) (quoting State v. Jendrusch, 58 Haw. 279, 283 , 567 P.2d 1242, 1245 (1977)).
cited Cited as authority (rule) State v. Borochov
Haw. App. · 1997 · confidence medium
Elliott, 77 Hawai'i at 311 , 884 P.2d at 374 (emphases added) (quoting Jendrusch, 58 Haw. at 281, 567 P.2d at 1244 ).
discussed Cited as authority (rule) State v. Moore
Haw. · 1996 · confidence medium
“Where the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient.” State v. Jendrusch, 58 Haw. 279, 283 , 567 P.2d 1242, 1245 (1977) (citations omitted); see also State v. Schroeder, 76 Hawai'i 517, 529 , 880 P.2d 192, 204 (1994) (“[C]harges will not be found to be defective where the record demonstrates that they tracked the relevant statutory language and that the defe…
discussed Cited as authority (rule) State v. Merino (2×)
Haw. · 1996 · confidence medium
It is well settled that an “accusation must sufficiently allege all of the essential elements of the offense charged,” a requirement that “obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint[.]” State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242, 1244 (1977).
cited Cited as authority (rule) State v. Israel
Haw. · 1995 · confidence medium
State v. Elliott, 77 Hawai‘i 309, 311, 884 P.2d 372, 374 (1994) (quoting State v. Jendrusch, 58 Haw. 279, 281 , 567 P.2d 1242,1244 (1977)).
examined Cited as authority (rule) State v. Elliott (3×) also: Cited "see"
Haw. · 1994 · confidence medium
This requirement may not be waived or dispensed with, and the defect is ground for reversal, even when raised for the first time on appeal. 58 Haw. at 281 , 567 P.2d at 1244 (citations omitted); see also Yonaha, 68 Haw. at 586 , *312 723 P.2d at 186 (following Jendrusch and holding that “the [oral] charge was fatally defective for failure to allege a necessary element”).
discussed Cited as authority (rule) In the Interest of Doe (2×)
Haw. · 1994 · confidence medium
Id. at 282, 567 P.2d at 1245 (emphasis added).
STATE OF HAWAII, Plaintiff-Appellee
v.
DWIGHT E. JENDRUSCH, Defendant-Appellant
NO. 5778.
Hawaii Supreme Court.
Aug 16, 1977.
567 P.2d 1242
Richard C. F. Chun, Deputy Public Defender (Donald K. Tsukiyama, Public Defender, of counsel) for defendant-appellant., Stephen D. Tom, Deputy Prosecuting Attorney, (George K. K. Kaeo, Jr., Deputy Prosecuting Attorney on the brief, Maurice Sapienza, Prosecuting Attorney, of counsel) for plaintiff-appellee.
Richardson, Kobayashi, Ogata, Menor, Well.
Cited by 113 opinions  |  Published
2 passages pin-cited by 3 cases
Pinpoint authority: bottom 90%
Citer courts: Hawaii Supreme Court (2) · Hawaii Intermediate Court of A… (2)

[*280] OPINION OF THE COURT BY

MENOR, J.

The defendant was convicted of the offense of disorderly conduct in the district court of the first circuit. The defendant appeals, contending, inter alia, that the complaint failed to charge an offense. We agree.

The defendant was accused of violating HRS § 711-1101, which provides in pertinent part as follows:

(1) A person commits the offense of disorderly conduct if, with intent to cause physical inconvenience or alarm by a member or members of the public, or recklessly creating a risk thereof, he:
sji ‡
(b) Makes unreasonable noise; or
(c) Makes any offensively coarse utterance, gesture, or display, or addresses abusive language to any person present, which is likely to provoke a violent response; (Emphasis added)

In the District Court he was charged as follows:

You [Jendrusch] are hereby charged that in the City and County of Honolulu, State of Hawaii, on or about the 14th day of September, 1974, with intent to cause public inconvenience, annoyance or alarm by members of the public or recklessly creating a risk thereof, you did make unreasonable noise or offensively coarse utterance, gesture or display or address abusive language to any person present, thereby committing the offense of Disorderly Conduct in violation of Section 1101(1) (b) of the Hawaii Penal Code. (Emphasis added)

By any fair construction [1] the complaint is constitutionally[*281] insufficient and therefore fatally defective. Not only does it fail to state an offense, but it also fails to meet the requirement that an accused must be informed of the “nature and cause of the accusation” against him. Territory v. Yoshimura, 35 Haw. 324 (1940).

The accusation must sufficiently allege all of the essential elements of the offense charged. Territory v. Henriques, 21 Haw. 50(1912);Dolackv. UnitedStates, 376 F.2d 756 (9thCir. 1967); cf. HRS § 702-205. This requirement obtains whether an accusation is in the nature of an oral charge, information, indictment, or complaint, and the omission of an essential element of the crime charged is a defect in substance rather than of form. A charge defective in this regard amounts to a failure to state an offense, and a conviction based upon it cannot be sustained, United States v. Beard, 414 F.2d 1014 (3rd Cir. 1969); Carlson v. United States, 296 F.2d 909 (9th Cir. 1961), for that would constitute a denial of due process. Thompson v. Louisville, 362 U.S. 199 (1960). This requirement may not be waived or dispensed with, United States v. Tornabene, 222 F.2d 875 (3rd Cir. 1955), and the defect is ground for reversal, even when raised for the first time on appeal. United States v. Beard, supra; Carlson v. United States, supra. See also United States v. Clark, 412 F.2d 885 (5th Cir. 1969). “Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.” H.R.Cr.P. Rule 12 (1960).

The complaint here purports to charge an offense under HRS § 711-1101(1) (b) (making unreasonable noise). However, the operative factual allegations charge the defendant with having engaged in activities violative of subsections (l)(b) and (l)(c) of the statute. An essential element of an offense under this statute is an intent or a reckless disregard [2] on the part of the defendant that his conduct will have a specific result. That consequence which the statute seeks to prevent is actual or threatened physical inconvenience to, or alarm by, a member or members of the public. The intent to[*282] produce this particular effect, or recklessly creating a risk thereof, is an essential ingredient of the conduct proscribed by the statute. It was not enough for the complaint to allege that the defendant had engaged in the conduct described in subsections (l)(b) and (l)(c) “with intent to cause public inconvenience, annoyance, or alarm.” In amending the Hawaii Penal Code in 1973, the Legislature emphasized that mere public inconvenience, annoyance or alarm was insufficient to impose penal liability. There must have been the intent by the defendant to cause physical inconvenience to, or alarm by, a member or members of the public. HRS § 711-1101; see Standing Committee Report 726,1973 House Journal at 1096; see also, Commentaries on HRS § 711-1101. The failure of the complaint to set forth this essential element as defined by the statute or to describe it with sufficient specificity so as to establish penal liability rendered it fatally defective. United States v. Beard, supra; Carlson v. United States, supra. Without the averment that defendant’s conduct resulted or threatened to result in physical inconvenience, the complaint was insufficient to charge an offense.

Furthermore, the complaint charged the defendant with having “address[ed] abusive language to [a] person present. ’ ’ [3] Such an allegation, without more, is insufficient to bring a defendant’s speech within the type of conduct proscribed by subsection (l)(c) of the statute. Speech may be punishable only if, within the meaning of the statute, it is “likely to provoke a violent response.” HRS § 711-1101(1) (c). What is required in the description of this conduct is a causal relationship between the speech and the disturbance sought to be prevented. The probable effect of this type of conduct is an essential element of an offense charged under subsection (1)(c), and failure to allege it was an omission fatal to the complaint. United States v. Beard, supra; Carlson v. United States, supra; People v. Frost, 125 Cal.App. 794, 12 P.2d 1096 (1932).

[*283] Richard C. F. Chun, Deputy Public Defender (Donald K. Tsukiyama, Public Defender, of counsel) for defendant-appellant. Stephen D. Tom, Deputy Prosecuting Attorney, (George K. K. Kaeo, Jr., Deputy Prosecuting Attorney on the brief, Maurice Sapienza, Prosecuting Attorney, of counsel) for plaintiff-appellee.

Where the statute sets forth with reasonable clarity all essential elements of the crime intended to be punished, and fully defines the offense in unmistakable terms readily comprehensible to persons of common understanding, a charge drawn in the language of the statute is sufficient. Territory v. Henry, 43 Haw. 54 (1958); Territory v. Kanda, 41 Haw. 591 (1957); Territory v. Yoshimura, supra. See also Downing v. United States, 348 F.2d 594 (5th Cir. 1965), cert. denied 382 U.S. 901. But the draftsman in this case obviously failed to take into consideration subsequent substantive amendments made to the statute by the legislature. See, Act 9, S.L.H. 1972; Act 136, S.L.H. 1973; and Act 164, S.L.H. 1974. The complaint was framed in the language of the statute as originally enacted. In light of these subsequent amendments, the present charge could not possibly support the defendant’s conviction. [4]

Reversed and remanded with directions to dismiss the complaint.

1

Kaneshiro v. United States, 445 F.2d 1266 (9th Cir. 1971), cert. den. 404 U.S. 992; See also United States v. Norman, 391 F.2d 212 (6th Cir. 1968), cert. denied 390 U.S. 1014.

2

HRS § 702-206 contains definitions of the states of mind which the Hawaii Penal Code recognizes as sufficient to establish penal liability. See Commentary on § 702-206.

3

In this connection, we take this occasion to note that the alleged abusive language was directed towards the arresting officer. While the facts show no justification whatsoever for the defendant’s conduct towards the police, the charge was improperly laid under HRS § 711-1101. See Commentaries on HRS § 711-1101. The abusive language, coupled with the outrageous physical conduct of the defendant in this case, would have warranted a charge of harassment under HRS § 711-1106.

4

To further compound the problem, the draftsman in this case elected to charge the defendant in statutory language in one count. The type of conduct proscribed by subsection (l)(b) is not factually synonymous with that proscribed by subsection (l)(c). In charging the defendant in the disjunctive rather than in the conjunctive, it left the defendant uncertain as to which of the acts charged was being relied upon as the basis for the accusation against him. Where a statute specifies several ways in which its violation may occur, the charge may belaid in the conjunctive but not in the disjunctive. Territory v. Lii, 39 Haw. 574 (1952).