The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1879-08-30

ana other instances have been cited, where judges
have acted in a similar manner. 1t appears 10 me,
that IL the true principle on which Justice ought 10
be administered is regarded, it is essential in trial by
jury not to abridge the judges discretion, but to
leave 1t unfettered-" After speaking Of the harsh
measures formerly used to coerce juries to an agree
ment, he says We do not desire that the unani-
nifty Of a jury should be the result Of anything bat
u~nanimity Of conviction"
When therefore a reasonable time has elapsed
and the judge is perfectly convinced that the unani-
nifty Of the jury can only be obtained through the
sacrifice Of honest, conscientious convictions, why is
he TO subject them to torture, to all the misery Of
mel shut up without food, drink or FIRE so that the
minority, or possible the majority may give way and
purchase ease to themselves by a sacrifice Of their
coDseiences? 1 am Of opinion that so far from the
practice Of thus discharging a jury being a mischiev-
Gus one, il is one essential TO the upholding Of the
pure, conscientious and honest discharge Of the
duties Of a juryman."
The same judge. in this case. thus i~nterprets the
maxim that no man IS TO be put in peril twice on the
samneharge. 1--WE must apply that great funda-
mentHf maxim of the criminal law according to its
true meaning. II means this, that q man shall not
twice be put IN peril after a verdict has been return
ed by the jury; that verdict being given on a good
Indictment, and one on which the prisoner could be
legally sentenced. 1t does not however follow, that
IL from any particular circumstances a trial has
proved abortiVe, that then the case shall not be
again submitted to the consideration of a jury and
determined as right and justice may require"
Now to speak Of the authorities adduced by the
defendant. People .. Goodwin, Is johnson 1877,
LANEA ~ u lA1IO VI AAS 4O-Vs
holds the doctrine we have expressed, that the power
Of discharging a jury exists in case Of necessity.
Chief Justice Spencer adopts the observation Of
Justice Kent IN People o. Oic0u that "eyery ques-
ton Of this kind must rest with the Court under all
the particular or peculiar circumstances of the case.
There Is no alternative, either; the Court must de-
termine when IL is requisite to discharge, or the rule
must be inhexible, that after the jury are once sworn
no other jury can in any Court be sworn and
charged ia the SAME case. The moment cases of
necessity are admitted TO form exceptions, that
moment a door is opened to the discretion of the
Court to judge of that necessity and to determine
what combination Of circumstances will create One.'
II was pressed in argument that the jury having,
although improperly, announced at j. p. NJ that they
stood seven for acquittal to five for conviction, and at
$3.50 the next morning, that they stood eight to four,
showed that they we're progressing towards q YER
dict acquittlng the prisoner, and that if they had
been sent back to their room again, 1t is likely that
one juror of the four might have gone over to the
majority, giving the nine needed to make a verdict.
IL might so have resulted. But IL is not the duty Of
the Court to force a verdict, either of guilty or not
guilty, which would not be the deliberate, voluntary
and reasonable judgment Of every one Of the jurors
rendering it, and this principle would be violated
by the moral coercion Of a single juror. Ii was for
the judge who knew the particular or peculiar cir
cumstances" OF that case, then to exercise the dis
erection vested in him by our statutes, and in accord
with the principles of the common law.
In O'BTian .. Com. (Kentucky), cited from Is
Am. Rep, a juror was discharged after the trh@
had commenced, on his statement that he had been
one OF the grand jury, and another juror being
drawn the trial proceeded. The decision of the
Court appears to be based on some particular sta
tutes Of that state. In so far as the Court held
that the discretion of the judge could be reviewed,
or that the provision of the State Constitution that
no person shall be twice put in jeopardy, applied to
a trial by a jury not properly constituted, we must
hold that the weight of better authority is adverse.
Likewise in People .. Cage, 48 Cal. 323. Here a
jury had considered Of their verdict for four days.
The time for the adjournment of the Court having
come, the Court directed the Sheriff to inquire if
they mad reached a verdict. They replied they had
not, and could not agree, whereupon, without call
ing the jury to the bar, the Court closed the term
and let the jury 90.
1t is sufficient reply to this authority, that our
Constitutional provision is that a good conviction or
a good a~cquittal is the bar to another trial, and cur
ment of two juries shall operate to acquit a pris-
oner, very plainly carries that the disagreement of
one jury does not have that effect.
The case on which defendants counsel chiefly
depends is that of Com. U. Cook, 6 Sergeant and
RaWle, Chief Justice Tlghman giving the opinion.
In this case, three prisoners indicted jointly for
murder were tried together, The jury returned
into Court and announced that they had agreed on a
verdict as to two. but would not be able to agree as
to the third defendant. wbereupon the Court dis
charged them. Chief Justice Tilghman held that
the jury should have been allowed to render their
verdicts separately for the defendants so far as they
had agreed. He must presume that the verdicts
were of aequittal and being forbidden to make in
quiry as to which they applied, must discharge all
the prisoners. Thus the judgment of the Court
rested sufficiently on this circumstance, which does
not apply to the case at bar The Court then goes
on further to examine the power of a judge to dis
charge a jury when they fail to agree. We have
said that our statute aud Constitution have given an
authority which is not to be set aside by precedents.
For these reasons we are compelled to deny the
motion.
Attorney General Preston for Crown, J. NJ David
son for defendant.
Honolulu, July 10Th, 1879.