The Hawaiian gazette., 1888-10-02


Sundry exceptions were taken at
the trial the charge being conspir-
acy. The substance and effect of
the two which relate to the jury may
be stated thus:
o.. That the Court erred in ex
cusing without several examina-
ton the twelve jurors who had sat
in the case of The King VS.. Luce,
likewise charged with conspiracy,
and that it then becoming necessary
to summon other persons as jurors,
(2). Such talesmen were not quail
fled and not properly summoned.
The statute which applies to both
these points is in Section 1899.
Whenever a sufficient number of
jurors duly summoned, do not APP
pear or cannot be obtained to form a
| jury the Court may order the Mar
shall or his deputy to summon from
among the bystanders or from the
circuit at large SO many persons
qualified to serve as jurors as shall
be sufficient"
The sufficient number of jurors
duly summoned is provided for by
other statutes whereby twenty-four
men liable to jury service are sum
moned to attend the term for the trial
of all cases then to be tried. 1t is when
panel of twelve cannot be obtained
from the array that talesman may
be summoned. 1t is the right of a
defendant to have his jury drawn
from jurors duly summoned, The
King VS.. Henry CornWell, 3 Hawn.,
165, until the array is exhausted by
challenges. 1t is not doubted that
the Court may excuse or exclude
from the jury such jurors as upon
examination appear to be dlsquall-
fed by previously expressed opinion
or by bias resulting from or evil
denced by facts and circumstances
although such juror may declare
himself to be free from bias. Such
exclusion by the Court, either on or
without motion made by either party
is an act of judicial discretion which
cannot be the subject of review.
The United States VS.. Cornell, 2
Mason, 81.
In Snow VS.. Weeks, rs Maine, los,
on exceptions to the exclusion by
the Court of several jurors from the
city of Rockland, upon the assump-
ton that the city might have some
interest or the jurors some bias IN
the result of the suit, held that it
matters not whether it existed or
not. 1t was a matter for the exer-
else of the discretion of the Judge.
To his ruling upon such a question
exceptions do not lie. He may put
off Juror where there is no real and
substantial cause for it. That can
not legally injure an objecting party
as long as an unexceptional jury is
finally obtained"
In the case at bar the gravamen
of the objection is that the twelve
Jurors were excluded in body with
out a separate examination.
The opinion of the trial justice
was that the case of the King VS..
Luce was so nearly parallel to the
case for trial, that jurors who had
passed upon the former could not be
free from bias as to the latter. In
this view there was no reason why
the Jurors should be examined separ-
ately, for the question would not be
as to individual bias or expressed
opinion, but as to the simple fact of
having sat on that jury, matter
needless to make personal inquiry of
them about. So we are brought
again to the question whether juror
or a panel of jurors may, at the dis
cretion of the Court, be excluded,
or rather what limit is there to
this discretionary power. In Ware
VS., Ware, s Maine 20, held that it is
the right and duty of the trial Judge
to excuse jurors when he thinks
proper, and to call over juror from
one jury to serve on another, at his
discretion. In Com. VS.. Livermore
ct al Gray Is, held that it was
within the authority of the Court in
its discretion to discharge a juror
not legally incompetent to sit in the
trial.
In the People vs. Arceo, 80 Cal.
40, after citing many cases where it
is held that if cause has been tried
by an unexceptional jury, the law
presumes no injury for want of any
other person composing that jury,
the Court, while not saying that a
judgment would not be reversed
where a Court arbitrarily or will
fully rejects juror not disqualified
under the provisions of the statute,
without any reasonable ground upon
which to base its action, held that
there being some reasonable ground
for the action of the Court, and
nothing disclosed in the record to
show that the discretion of the Court
was not soundly exercised, it would
not sustain the exception.
We think the case before US comes
easily within this reasonable rule,
and override this exception.
In regard to the objection that the
talesmen were not qualified, and not
properly summoned, it appears that
the Court, after excluding the twelve
jurors, and there being less than
twelve remaining, ordered the Mar
shall to summon talesmen from the
circuit at large, and that in pur
suance of this order. he passed by
the bystandess and cited men from