The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1881-12-07
Sup-ene Court of the Hawaiian islands
Special Term November 81. 1881.

Il. AP- CARTER, MINISTER oF THE IN
EERIoR rs. LOO NGkwK AND oTHKRs-E
likSco.
.1afl c. J, MeCu1v and Austin }. J.-0piniol
y he Cart b. dustin j.
This Is an action Of debt on bond. The sol,
exception brought here FOR consideration BY
thu defendants counsel Is, that "as appears
81 " the Marshall return 10 the 0eRire for the
q term AZ which the case below was tried, the
-' full number Of jurors required by law had moi
q t,eeu summoned, and that talesrnan were sum
q moned IN before the number Of Jurors re-
" CURED by law 70 be summoned for the said
=" term had been summoned. and the Jury on
the frial below was made up partly of said
falesman, and partly OF other jurors sum
moned by the Marshal. And that the de-
fenlzuis' counsel objected to the jury, and to
It's being impanelled, OF the ground aforesaid,
and the court overruled the objection, and the
defendants counsel duly excepted.
We are Of opinion that the decision Of the
conn below was right
Section e One Of Chapter " Seventeen Of
the laws Of 1870 p. %. provides in substance,
that each governor IN concert with some Judge
of a court of record, IN the months Of March
an6 September in each year, shall prepare a
u.s. % NlAN NaLNE AAaMa llAiirs hUl MY 0AutI
persons, being foreigners by birth or of foreign
pareniage residing within their respective
-ui5cuIatorial divisions who in the opinion of
such governor or Judge, are fit to serve as
Jurors Il Is not shown or claimed that this
section uf the statute was not complied with.
section " Two F" provides IN substance, as
applied 10 this case that the clerk Of this
court. u, least twenty days before the sitting
Of any court. shall draw from the appropriate
boz the names Of q native and p foreign
jurors, which drawing shall be had in the
presence q Justice Of the Supreme Court or
a Circuit Judge or the governor Of the Island,
who shall certify to the regularity Of the pro-
cueiin-s. Il is not shown or claimed that this
sec-ion Of the statute was not followed.
Section Four" provides in substance that
each clerk shall transmit TO the Marshal or
Sheriff the names Of the Jurors drawn, within
twenty four hours after they are drawn in
order that such Jurors may be duly summoned.
This provision has also been complied with.
The return II the Marshal shows that seven
only out Of forty-eisht names Of jurors
furnished. were not summoned, because beyond
the jurisdiction This is the only defect
claimed by the defendants counsel. This de-
feet is In regard to a matter which must neces-
sarily rest in uncertainty. In the first
place the lists arc drawn only once in six
months for all the terms held in that time. 1t
is kelly that the condition Of one or more Of
each list drawn will change before the time
for the drawing of a new list. The list is OF
those who, 10 the opinion Of the judge or gov
eTIi1r are fl 10 serve as jurors. This must
necessarily be so everywhere. Also the list
Of Jurors drawn must be subject to the changes
which arise until the next drawing provided
by law, and such changes ought not to affect
tho validity Of any panel.
There is no law saying when the Marshal
shall summon the Jurors. In the absence of
snch law il should be held that they were
q he summoned within a reasonable time be-
fore the term. Often this might be only day
or even an hour.
Section 1911 Of the Civil Code, which is in force
shows that II was contemplated that jurors
might be 50 summoned. This section is as fol-
lows. :" Every such Juror if duly summoned
az least IS hours precious to the Folding of
the court. shall be punishable for non-attend-
ance hv fine not exceeding 500 in the dis
oreiiou Of the court for each day that be fails
10 attend without reasonable cause, and he |
may be brought mp by summary attachment
for that purpose.
There is no provision for any drawings of
jurors except al the times or in the manner |
before stated. The drawing for the term to /
he regular must be twenty days before it sits /
II the exception is 10 prevail it will come to
tins, that many times, and perhaps ninety-nine /
times ia a hundred, owing to the uncertainties
Of human life and human affairs, among forty /
eight men selected 10 be summoned, or one /
hundred men selected as fit for jurors, term
appointed 10 be held, for which parties and /
witnesses and counsel and judges are ready, 4
VIII fall through, and we shall be obliged to |
appoint extraordinary terms, subject again to |
he defeated by new changes in the lists drawn |
and semi out TO be summoned.
il has been suggested by counsel that pro-
vision should lie added TO the law requiring
the Jurors to be summoned a definite number
OF DAYS before the term. Even this would not
insure beyond contingency the summouiug of
4 full jury list. At ANY moment death might
come In aud prevent it. No amendment could
be made by which one or oven seven jurors,
out Of list Of foriy-eiglIt jurors, might not
necessarily remain unsummoned OH the first
dav Of term.
The decision in the case Of the King VS..
Henry Coruwell, Hawn. r. p 81, is not in
point against tie view OF the court here. In
that case the panel Was quashed because the
Jury had not been drawn ard summoned &C
cordinC 10 law. In this case the jury were
properly drawn, il is conceded. Ard we hold
ihai they were properly summoned.
Having decided the question upon its merits,
without reference TO the legal formality of the
objection taken, VIC deem it unnecessary to
consider the effect Of rule IS cited by the At
t1rley-General. Exceptions overruled.
A. Francis JUUD,
LAWRENCE MCCULLY,
Benz. II. AUSTIN.
Mr.. Armstrong (Aity-Gen'l for Plaintiff.
A :. Hariwell. ATTY for Defendants.
H...-In.Ir nnc.rnler 2l SSl