The Hawaiian gazette., 1888-10-02

torial division. Such persons who,
in the opinion of such governor or
Judge, are lit to serve as jurors, may
be put on the list They are quail
fed by fitness, residence, and foreign
birth, and not by the selection of
the governor, who selects fit and
qualified persons. In the case OF
those whom the Marshal summons,
the Court passes its judgment if they
be fit, and would exclude or excuse
them if they appeared or were shown
to be unfit for instance, by want of
acquaintance with the English Ian
guage, by deafness, by being non
compoS, or in feeble health. The
Marshal may summon those whom
the Governor might select, and they
would be qualified to serve as jurors.
1t appears by affidavits that the
Marshal, in pursuance of the au-
thority to summon from the circuit
at large did not take men whom he
casually saw, and the first whom he
saw in the streets, but made some
designed selection, going into
workshop and taking man from his
employment. 1t is charged that the
Marshal thereby made a personal
selection or picking of the jurors,
and, theoretically, that he picked his
jurors with view to secure verdict
for the prosecution.
The statute only provides that the
Court order the Marshal to summon
so many persons as shall be suffi-
cient, and that when he has sum
moned the number so ordered he
return their names into Court. This
is plain provision for summoning
certain number, and not certain
persons, for it is the Marshal who
returns into Court the names of the
number he has served. The Court
is given no authority to make list
of those who shall be cited. The
Marshal then being ordered to cite a
number, it is inevitable that he
should exercise a choice. If he cites
from the bystanders, there being
more present than the number he is
to make up, he chooses out the num-
Der. If he goes into the circuit at
large he must exercise choice I'M
less he simply takes the first men he
meets singly. In crowd of eligible
men, he still must by some selection,
however rapid, choose his number.
The phrase "circuit at large" i'm
plies selection from the whole of
it. There are no terms any where to
limit the choice which may be made
out of the qualified persons.
Now if it is said that this is dan
gerous power to repose in the hand
of the officer who, as the head of the
police, cannot be considered i'm
partial in criminal prosecutions, we
make the common observation that
if the plainest construction of the
statute requires it, the Court is not
responsible for the consequences of
the law, but must give it effect but
furthermore, that there is the safe
guard that the talesmen must bear
the examination of the Court and
parties, whereby fair and impartial
jury ought to be obtained.
The defendant also excepted to
the charge of the Court that on the
third count the defendant is guilty
unless he show himself within the
exceptions which allow goods to be
taken out of the Custom House with
out the payment of duties.
This would be matter of defence
properly lying on the defendant.
1t was not required to be set out in
the Indictment, and therefore not
required to be proved by the prose
cution.
Com. vs. Murphy, 2 Gray, 514
Com, VS.. Jennings, II Mass, AZ.
Potters' Dwarris, p. 119.
The last exception to be examined
is for the refusal to instruct that no
conviction can be had on the third
count because no criminal offense is
stated in it.
The third count is that upon which
the defendant was convicted, the
second having been mol. prOs'd, and
on the first the Court instructed that
no verdict could be found
We quote in full Section SO of the
Grim. Procedure Act, page BAT, Com
piled Laws:
every objection to any indict-
ment for any defect apparent on the
face thereof, shall be taken by de-
murrer or motion to quash such in
dictment before the accused has
pleaded and not afterwards and
every court before which any such
objection shall be taken for any such
defect may, if it be thought neces-
sary, cause the Indictment to be
forthwith amended in such particu-
lar by some officer of the court or
other person, and thereupon the trial
shall proceed as if no such defect
had appeared; and no motion in ar
rest of judgment shall be allowed for
any defect in any Indictment which
might have been taken advantage of
by demurrer or motion to quash as
aforesaid"
1t is claimed by defendants coun-
sci that the force of this Section is to
prohibit the allowance of a motion
in arrest of judgment leaving the
remedy by exception undisturbed.
This construction would Illustrate
the intent of the statute. The eff
feet of giving the instruction would
have been to order an acquittal.
The effect of sustaining the excep-