The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1869-09-08

the part of the owner, and an acceptance on
the part of the public, as soon as these con-
cur, the dedication Is complete. Ordinarily,
there Is no other mode Of showing an accep-
tance by the public Of dedication than BY
its being made use of by them, and this
must be sufficiently long to evlnce such ac-
ceptance, depending Of course upon the cir
cumstances of each case, and In no
case, has the time been measured BY that
required TO create prescription.
When the dedication Is accepted, Il takes
effect and the owner of the soil is thencefor-
ward excluded from asserting his ancient
rights" 90. p. 1851
If public user be the only evidence Of dedi-
cation, it must continue for n much larger
period what that period should be. has never
been definitely settled here. In 1885 this
Court, in Rookie vs.. Nicholson, ], Haw. 2SS,
expressed the view that the uninterrupted use
of a way from the time Of the organization Of
the Government in lS46, would establish q
right by prescription. Sufficient time has
now elapsed under the present form Of Gov
ernment to warrant US in adopting the general
rule in England and the United States, Of
twenty years. This rule is the more applica-
Bile here, where roads often run through waste
or unenclosed lands. We must presume that
there was evidence in this case to sustain the
verdict in regard to dedication, either by suf-
fcient lapse of time or by express acts, al
though we are not informed what that evil
dence was.
A motion in arrest of Judgment, was also
made by the defendants counsel, on the fol-
lowing grounds
L. That the defendant was not found guilty
of any offence in the law.
2. That the verdict is contraryto Sec. s, Oh.
81, Penal Code.
5. That the verdict is so imperfect and de-
fective, that no judgment car be given upon il.
The section in the Penal Code referred, Is
as follows "The offence Of common nuisance
is of two degrees, and the degree is to be found
by the jury, or determined by the Court or
magistrate authorized to decide on the facts;
and SO also, the degree is to be determined by
the Court before which proceedings are had.
where the facts charged are admitted by plea
or otherwise"
This motion was oyerruled, and the Court
sentenced the defendant to pay fue of tWen-
ty-iye dollars, which is within the penalty
provided lin sec. 10,) for the second degree.
The original complaint was brought gener-
ally, under ch. 81. In that chapter, the Of
fence of a common nuisance is defined, and
certain specified acts are declared to consti-
tute the offence. The object Of determining
the degree is solely to fix the penalty within
certain limits. The defendant suffered moth
ing by receiving judgment for the lowest de-
gree.
No objection to the form of the verdict was
made at the time it was rendered, when the
jury might have amended, by inserting the
degree. The finding of the jury is, that the
defendants acts are n common nuisance, but
they do not specify its degree. A verdict is
bad, which finds only part Of the issue, and
if so imperfect that no Judgment can be given,
it must be set aside. "But If the matter and
substance of the issue be found, it is sufficient"
Inst. 227.
In Foster VS.. Jackson, Hobart, 81. it is laid
down, that "howsoeyer the verdict seem to
stray and conclude, not formally or punctually
unto the issue. so as you cannot find the words
Of the issue in the verdict, yet if a verdict
may be concluded out of it to the point in
issue, the Court shall work it into form and
make it serve" In general verdict on an in
dctment of several counts, or on several counts
for the same cause Of action, some Of which
sFe defective, the Court will presume that the
verdict was based upon such counts as are
good. Porter VS.. Rummery, 10 Mass, 81 and
note. Pettes vs.. Bingham, 10 n. II. 5l4.
1t is no presumption of fact to say. that the
verdict rendered on this complaint meant
something, that is, it meant either the first or
second degree Of the offence. No injustice
was done, and no rule Of law was violated by
awarding. in this verdict, the penalty for the
lowest degree.
Finally, was the jury that tried the case,
legally empannelled?
In an indictment for murder, the panel Of
foreign jurors for the same term Of Court,
had been quashed, upon plea Of challenge
to the array, on the ground that the jury
had not been drawn and summoned accord
ing to law. When the Attorney General
moved that a jury be empanelled to try the
present case, the defendants counsel objected,
on the ground that no jury had been properly
drawn and summoned, and therefore there
could be no talesmen, and the Court had no
power to summon jury Of talesmen, until q
lawful panel was exhausted. The Court, how
ever, decided, that as duly summoned jurors
did not appear, the sheriff should summon
from the bystanders or the Circuit at large,
twelve good and sufficient men to act as jurors
in this case, under sec. 1899 Of the Civil Code,
which was done accordingly, to which ruling,
as well as tothe jury being sworn to try
the case, against the objection Of the defend
ants attorneys, exception was duly taken.
1t has been the practice here to regard the
statute requiring that the names Of thirty-six
jurors be drawn by the clerk, at least twenty
days before the term, as merely directory. In
capital cases. the statute gives the prisoners
counsel the right to be informed Of the names
of the persons SO drawn, who are TO sit in his
case. If any hardship resulted from delay in
the drawing, it might be good cause for grant
ing a continuance Of such case until the fol-
lowing term.
Section 1899 of the Civil Code, reads:
Whenever a sufficient number Of jurors, duly
summoned, do not appear, or cannot be OBJ
tanned to form jury, the Court may order
the Marshal or his deputy, to summon from
among the bystanders or the circuit at large,
so many persons, qualified to serve as jurors,
as shall be sufficient" Section 1Ig8, N., pro-
vides that the clerk shall draw the jury "from
the names Of such persons as have been daily
summoned to attend as jarors." ID was ar
gued that that no trial could legally be held
unless there had been duly summoned jury,
whose names had been first called, before the
summOning Of the talesmen. in no respect IL
the law more nice, than in securing TO all, Q
legally constituted jury. To prevent the dan
ger Of packing juries, il was provided that
parties should have the benefit Of trial be-
fore twelve good and lawful men," drawn
by the clerk Of the Circuit Court, from out Of the
thirty-six names previously drawn by the clerk
Of the Supreme Court. 1t is true that no statute
can ensure the attendance Of the persons 50
drawn. and those who attend may prove to be
disqualified, or in capital eases, may be retired
by peremptory challenge Of the defendant.
But the defendant was entitled 10 have the
number of jurors required by law, duly sum
na0Hed, before a tales could be granted. The
Constitution guarantees that the right Of
trial by jury "shall be held inviolable for
ever" 1t Is incumbent upon the officers Of
the Government to see that jury be duly
summoned; then, and not before, In case OF
the necessity arising, the by-standers may be
summoned, In the manner provided In the
Statute. It Is immaterial whether, 10 this
case the defendant was preindiced By the