The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1879-08-30
THE PACIFIC
Commercial A6bertiser.
SATURDAY. AUGUST 30.
Supreme Court in Banco-July Term, 1879.
rHE K1se vs.. KELrnAxArr1 DAVIS. v.

Attorney General Preston and Mr.. Davidson we're
heard in argument thereon, Saturday July 18th.
"The defendant in the above cause by J. NJ. Da-
wilson her Attorney moves the Court in arrest Of
judgment on the verdict rendered herein and as
signs the following grounds:
'isf-Tbis cause coming on to he heard on the 9Th
day Of June \ ID. 1879, at the Second Judicial
Circuit holden at Waikiki, Island Of Maui, before
His Honor Chief Justice Harris and Mr.. Justice
Fernandez, and jury having been duly impaueled
and sworn 10 try the issue, after the cause had been
submitted 10 said jury and they had retired and
were deliberating. the Court adjourned at II30 p. N.
June 9th to go a. M June 9Th 1879.
"2nd-UpOn the said jury coming into Court con-
forming with the order Of adjournment the foreman
stated the jury stood eight Tor acquittal and four for
conviction. thereupOn the Court, without consent of
defendant, discharged the jury, which il il suggest
Ell was an acquittal Of defendant
''3rd-On the trial Of the above cause before anoth-
err jury on the 9TH and Sth days Of July A. D.. 1879
at Honolulu, objection was made by Counsel for de-
PENDANT to the admission before the jury OF a written
confession or statement made under oath by defend
ant on n former occasion, which objection was over
ruled by the Court and the statement or confession
permitted to 90 10 the jury, without which no con-
yIction could have been claimed or obtained by the
prosecution
Wherefore the said Attorney believing that the
said irregular proceedings and especially the dis
charge Of the jury on the former and first trial with
out the consent Of the defendant worked an acquit-
tai Of the said defendant, the said Attorney moves
the Court for an order directing His Excellency the
Attorney General TO show cause why Judgment in
the above cause should not be arrested and the pris-
oner discharged
Respecting the question Of the admissibility of the
defendants confession az given in her testimony be-
q. fore the examining Magistrate, the Court, at the
hearing, said that they were Of opinion, as suggest
ed by the Attorney General, that this was matter for a
bill OF EXCEPTIONS, which, II sustained, would give the
defendent a ne~ trial and would not acquit and dis
charge her. Her counsel had noted an exception,
at the trial, and, accepting this view, intimated his
intention TO take that course.
The first point, that by an adjournment Of the
Court while the jury were consulting IN their room,
the validity Of the whole proceeding was destroyed,
the defendants counsel withdrew from argument on
the observation Of some cases Of English practice,
sanctioning an adjournment Of Court pending a
case, when necessary.
We have to premise as to the remaining item in
the motion, the second, that II should regularly
have been made as q plea in bar.
The defendants position Is that by the discharge
of the jury az the trial in the I'd Judicial Circuit
Court, she was acquitted, and not liable to be tried
again. Such plea should be made before another
trial proceeds. But the Court IN faUOrem Uit0,
does not regard the technical objection and will now
consider the point in like manner as if il had been
made at the threshold Of the late trial. We do not
by this remark intend TO impute any want of skill
or care to defendants counsel. He has argued his
motion with force and conducted the defence with
ability. He was at q disadvantage from his receiv-
ing the case at q late DAY, and from not being en-
gagged in the first trial.
Article z, Of our Constitution is I'll No person
shall be required to answer again for an offence Of
which he has been duly convicted or OF which he has
been duly acquitted upon a good and sufficient in
dictment.'' The same appears in Article 9, Of the
Constitution Of 1852
The defendants counsel argues that this is equiv
alent to the provision in the Constitution Of the
United States "Nor shall any person be subject for
the same offence, to be twice put in jeopardy Of life
or limb - aud that when the defendant was COM
mitted to the jury, her life was put in jeopardy, and
that she was entitled Of right to receive from that
jury n verdict acquitting or cOnvicting her, but that
without the consent Of herself or counsel. the Court
discharged the jury, that she may therefore claim
that abe not aUain b. mt in ieODardv. that IL.
may be discharged from custody and prosecution.
We shall refer later to the authorities adduced in
support Of this proposition.
Ii is to be observed that the language of our Consti-
tuition is full and explicit. To sustain such q plea in
bar. there must have been a trial upon a good indict-
meut proceeding to a verdict acquitung or convict
ing the defendant
The case Of jury being discharged before render
ing verdict is contemplated by section 1904 of the
Civil Code :-'' When any jury shall return into
Court and state that they cannot agree upon a YER
dict, the Court may, in its discretion, discharge such
Jury, or remand them to the jury room for further
deliberstion; and by section 3, Chapter XII Of the
Statutes Of 1876, which Is a re--enactment Of section
HIS Of the Code, containing the clause The suces-
sive disagreement Of two juries impanneled to try the
cause shall operate as an acquIttal OF the accused
Under such a constitutional provision and statutes
concerning the discharge of juries, 1t would seem to
be beyond controversy III his Kingdom, that 1t lies
IN the di=ozetipn Of the Court TO discharge a jury for
failure TO Hk n verdict that the discharge of one
jury does not affect the right Of the prosecution TO
ia TX EAA Nl = [N1A AAHAH 49, $3.50 -
second Jury are unable to form a verdict, and the
Court shall see fit TO discharge them, the defendant
shall stand acquitted.
We say for failure to make a verdict, although,
the language Of the statute section 1904 is: When
ever any jury shall return into Court and state that
they cannot agree upon n verdict Section ll7S.
bases the acquittaI on the fact Of the disagreement Of
two uries. We must interpret the statute TO mean
that the judge may discharge IA jury, when, in his
judgment, II appears that they cannot agree, after a
sufficiently long time has been spent in elaboration.
IL cannot be n reasonable construction to hold that
the Court must wait till the jury may formulate this
fact in the terms employed IN the statute.
Il will appear by the Statement below Of what
passed in this case, that the jury informed the Court
that they had not agreed. This Is equivalent to
saying . they cannot and the law does not require
them 70 anticipate the future aud say will not there
after agree.
1t would seem that the authors Of the Constitution
and Statutes intended by this phraseology to prevent
the controversies which have arisen from the rule
against the second jeopardy Of life or lmb,-or as
we should strictly say Of life or liberty. there being
no penalty Of manning IN existing civilized law
The force Of the phrase quoted from the constitution
Of the United States. and found in some state cOusti-
tutiOns, depends on the common law, Of which IL Is
q maxim established IN the Magma Charta, and It
has received luminous Interpretation by the highest
English authorities The case Of UiHsoT Z. the
Queen in 1866, reported in Vol 1, Queens Bench
cases, pages 2S9 ct seq, reviews the line Of prece-
dents, and considers the origin Of the legal tradition,
that n jury once charged with the issue Of a party's
guilt or innocence, must be held together until n
verdict Is reached. or If discharged, it is with the
result Of acquittaL
Chief Justice COckburn and Justices Blackburn,
Mellor and Lush pronounce opinions.
The record Of a conviction for felony (murder)
showed that on the trial Of the indictment, the jury
being unable to agree. the judge discharged them;
that the prisoner was given in charge Of another
Jury at the next assizes. and n verdict Of guilty re-
turned, aud judgment and sentence passed. On
Writ Of Error, this learned Court held, that the
Judge had n discretion to discharge the jury which q
Court Of Error could not review; that the discharge
Of the FIRST jury without n verdict was not equivalent
to an aquittal and that \ second jury process might
issue
We may state the facts and circumstances Of the
case at bar, bat in so doing We do not propose to re-
view the act Of the Circuit Court, dischaTging the
Jury. Our statute as cited. Section 1904, places this
IN the discretion Of the Court holding the trial. and
established legal principles will not permit the dis
erection Of q Court to be reviewed