The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-05-31
Supreme Court of the Hawaiian Islands
April Term. 1882. In Banco.
In, q 1 Mrnr.r1N lNn Arsr1N j j

Kalaeokekoi VS.. D. Kahanu.


This was an action Of Eiectment to recover
a piece Of land in Honolulu.
The first exception is to the refusal Of the
Court to allow the record offered by the plain
tiff after defendant had closed, Of the proceed
ings in probate, in the matter of the estate Of
Kalaeokekoi (Senr. }, in 1860, wherein the es-
tate was decreed TO Keaka, the mother Of
plaintiff. The evidence was direct testimony
for the plaintiff, and he had his opportunity Of
introducing il when he,was putting his case to
the Jury. 1t did not rebut the new matter III
troduced by the defense, and the Court was
right in refusing TO admit it at this stage.
The second exception is to the following
charge of the Court: 'That if one living on
land by consent Of the owner, and while so
living began to hold adversely to the owner,
in order to derive title by twenty years adverse
possession the owner must have notice Of the
beginning Of his adverse holding that he so
held"
In Kaaihue VS.. Crabbe, Sd Hawaiian IA,
this Court adopted the views Of Washbun as
laid down in his I'd volume on Real Estate, p.
400, as follows: "Where, therefore, one enters
in subserviency to the title Of the real owner,
there must be clear, positive and distinct
disclaimer and dissvowal of the title under
which he entered and an assertion Of an adj
verse right brought home to the owner in or
der to lay foundation for the operation of the
Statute Of Limitations" The charge to the
jury given accords with this decision and was
right.
The remaining exceptions are Withdrawn
We now consider the motion for a new trial on
the ground Of the alleged incompetency Of the
juror, J. Hamauku, by reason Of his intoxica-
ton, and the alleged improper influence ex-
erted by defendant over the jury The Aft
davit Of Rev. II. II. Parkeris to the effect that
for the last few months the said juror has been
in a state of mental alteration, sometimes
complete and sometimes only partial, caused
by excessive drinking as the defendant believes.
The clerk Of this Court deposes that the said
juror appeared to him to be under the iuiu-
encC Of intoxicating liquor while sitting as a
juror
The affidavit of Levi Isaac, one Of the jurors,
is objected 10 under the ruling Of the case Of
Rex vs.. Kahalewai, Sd Hawaiian, 465, which
decided that Jurors cannot I've permitted to dis
close their deliberations and proceedings
while consulting together, on the ground that
their communications are confidential and Sc
cret and should he kept so. But this affidavit,
SO far as it describes the violent actions and
extraordinary conduct Of the juror, Hamauku,
as indicating a state Of intoxication while in
the juTy-room, is admissible without trans
cending the principle Of Kahalewai's case that
the sancity of their discussions is to be pre-
served. The Court is itself aware Of the pro-
oeedings Of the Jury when they came into Court
The Juror Hamauku declared that he was fore
man and that their verdict was unanimous for
the defendant, Thereupon several of the jury
declared that they had not come to a Coaclu-
sion and that the verdict was not unanimous,
and four jurors appearing to dissent, the Court
said that there was no verdict and sent them
back for further deliberation, and they after
wards returned verdict for the defendant,
three dissenting. The Court is Of the opinion
that the juror Hamauku was not in a condition
OF mind TO give the case the consideration
which the law requires and that the afidavits
show such misconduct on his part as would
yiiiate the trial. He was one Of the nine who
found the verdict and being incompetent by
reason of intoxic&tion there was no legal YER
dict.
There arc other afidavits submitted showing
that the defendant, Immediately on the verdict
being rendered in his favor, invited the jury
TO dine at his expense. This was done even
while the jury were leaving the Court room.
The proof is made also that the Jury accepted
the invitation and were treated to dinner in
public restaurant in our town. This was
reward given by successful suitor to the
Jury, as if they bad shown him favor which
was thus to be compensated. Whether this
was in pursuance Of promise to tbs effect
made before the trial II is impossible TO say.
But whether II was so or not, we cannot allow
this TO pass unrebuked, tor if this practice
should be continued, juries would be led 10 ex-
pect such favors in every case, and a tacit IN
Outstanding that certain parties if they should
win would treat the jury would I've equiva-
lent 70 promise TO treat them, and the jury
would be tempted 10 let The verdict 20 in fayorof
that one Of the parties litigant whose hberality
or means would ensure them the most generous