The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1882-05-31
Aalraiialr 6azettt.
WEnNEspAY. MAY 81. 81.
supr.me Court OF the Hawaiian Islands.
April Term 1882
ornuos OF JUMP c. J. on MOTIOS FOR NV TIA

April Term 1852.
OPINION OF JuDD C. J. on MoTIoS FOR NV TRIAL.
Kapohaku (w) ct al vs.. Koa (k)-Bjectment.
Il aupears by the afidavits filed that while
the Jury were in their room celebrating upon
their verdict, one Of them, Sam. g, Dwight by
name, leaned out Of an open window and had
a conversation with police officer, kaalniu,
who though not specially sworn to take charge
Of the Jury, had been stationed By the Marshal
in the yard to keep of intruders from the Jury.
II furtlier appears that Dwight told the oihcer
that the Jury were obstinate; also that the OH
Ger should move away from the building, and
mai he desired him to open the door soShe
could 70 out for a necessary purpose. 1t does
not appear by the afidavits that the officer said
ANYTHING, except to tell the juror to leave tie
window.
The affidavit Of the juror is objected to as
insdmissible under the ruling Of the King VS..
Kahalewai, Bird Hawaiian Reports, i65. The
Court there held that affidavits Of persons who
overheard the discussions Of the jurors IN the
Jury room cannot he shown to invalidate their
verdict, nor could afidavits Of the jurors them
selves, disclosing their deliberations and pro-
ccodings while consulting together, be re-
ceived.
The misconduct sought to be shown in that
case was, that the language used by one juror
10 his fellows indicated an improper bias
against the accused.
In the case before me the sancti.y Of the
Jury room is not sought to be invaded. The
affidavits show no conversation among the ju-
rors themselves; if they did, ! should be
obliged to reject them on the authority OF this
decision.
The misconduct here alleged is a conyersa-
ton between a Juror and an officer, and 1t con-
sists mainly Of remarks by the juror, and only
one remark by the officer, to wit, that the juror
should withdraw from the window. Should
this be held good ground for ordering a new
trial ?
This Court will endeavor by all means with
in its power to prevent all attempts TO influence
the Jury and to preserve the purity o. jury
trials, and if the conversation described in the
afidavits had reference to the case, and was
likely or calculated to influence the verdict, l
should be bound to set aside the verdict, even
though it be not proved that such influence was
cxerted.
In the instance before me the officer should
not have approached the window nor listened
to the Jurors remarks, but he should have
moved away and reported TO his superior or
the Court; but il appearing that he made no
reply, except to warn the juror away from the
window, cannot say that this is misconduct
which vitiates the verdict, as he said nothing
having any bearing on the the case.
have examined the cases cited in support
Of the motion, and while adhering TO the prin-
ciples there laid down, It seems to me that the
facts Of the case before me do not show such mis-
conduct as would vitiate the verdict. To sus-
tain the position OF counsel for the motion that
ann conversation or remark addressed by a
Juror to an officer should entitle the verdict to
be set aside, without inquiry into the nature Of
that conversation, or whether it was calculated
10 the verdict would be extremely embanass-
ing 10 the Court. The Court should exercise
a discriminating view and decide each case
upon its merits.
The authorities cited are, PrOftatt on Jury
Trials, Sec. 39l; Sargent VS.. Roberts, Pick.
81, where the Judge wrote letter TO the jury
respecting the case. New trial granted. knight
VS. Inhabitants Of Freeport, l3 Mass 2l7. In
this case a new trial was ordered in conse-
quence Of a remark by the plaintiffs son-in-
law to a Juror, after empanelling, that the case
was Of great importance to him, etc. Common
wealth VS.. Roby, - Pick. $40, where the jury
were permitted to have refreshments. Shea
VS.. Lawrence, Allen l67, where the irregu-
larity complained Of was a casual remark by a
bystander, made before trial to a third person
in presence of one or more jurors, not knowing
they were Jurors. New trial refused.
Read VS.. Cambridge, l2l Mass j67. Here
au officer presiding at trial before Sheriff S
Jury, gave fresh instructions 10 the jury after
they had retired, in the absence Of the parties
or counsel, and a new trial was ordered.
Hamilton VS.. Pease, So Conn. III. Verdict
set aside because juror conversed with party
about Tie case, and the conversation showed
bias against the unsuccessful party. Tomlin-
son VS.. Town Of Derby, Al Conn. PSI In this
case the verdict was set aside because third
person told a juror during the trial that if the
trial should continue Is or 20 days, and the
plaintiff should recover $1,000, he would have
nothing left after paying expenses OF SUIT.
Motion overruled.
J. J.. Eaulukou for plaintiff, c. Brown and
A. ;. Hartwell for defendant.
Honolulu, May II, 1882.