The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1889-01-25
wAlALUA SHOOTING CASE.
MR.. JUSTICE BIcKERToN GRANTS MO-
TIoN FOR A NEW TRIAL
THE AFFIDAvITS.

JnlS nOIuluS HIS liOnOI JuStlCS
Bickerton said although he had had
a great deal to do the previous day
and did not leave the Court until
one O'Clock this morning, still he had
been able to look up the authorities
and arrive at q conclusion. He had
passed on all the grounds of the mo-
ton with the exception of the mis-
conduct of the jury. All the atii-
davits had been fled. Upon eN-
animation of the authorities they
seemed to be all on one side, and
they were very numerous. When a
jury had beforehand prejudged q
case, and then given false answers,
which were unknown to the parties
at the trial, new trial should be
granted. That position is given by
numerous authorities. In the case
of Studley vs.. Hall Shipley page
POI it says, 1.-THE juror testiics that
he has no recollection of having ex-
pressed such opinion" When
juror says he has no recollection,
that does not contradict the atlida-
vit. The denial is not positive, it is
simply on recollection. 1t does not
contradict the aflidavits of Nivas
and Cluncy. His Honor then quot
| ed from the case of the King VS..
John Clements, motion for new
trial heard before the late Justice
Austin in 1888, and which His
Honor said bears closely on this
case. 1t says, "No juror should sit
in any case, especially in criminal
case, in which he has the slightest
iIl-will towards any party, and the
existence of such i!l-will is principal
cause of challenge. Upon the whole
case am strongly of opinion that
the defendant did not have an i'm
partial jury and that injustice has
probably been done him and l
therefore order q new trial
His Honor said there was unlimit-
ed authority supporting this posi-
ton.
| Another authority quoted was
Elayne on New trial and appeal.
In chapter V. page l43, it says,
"and it seems that il is not neces-
sary to the operation of the rule that
the juror should have been wilfully
false in his statement. Thus where
a juror on his examination stated
that he had not formed or expressed
an opinion concerning the case, and
sftcr verdict it was ascertained that
! previous to the trial he had express
cd an opinion unfavorable to the
prisoner, the verdict was set aside,
The Court saying: ''Thc expression
may have escaped the jurors mind ;
1t is not necessary to impute moral
turpitude to him. but he was legally
disqualified the appellant had the
high and sacred constitutional privi-
lege of being tried by men who had
never at any time prejudged his
case" Most of the cases in which
the rule has been laid down are
cases where the disqualification of
the juror was by reason of some ex-
preston of opinion concerning the
case, or by reason of some feeling of
hostility to the losingj party. But
the reason of the rule extends to all
cases where the juror states on his
examination that he has some quail
tication which it turns out he has
not. In California the rule was ap-
piled in the case Of People VS..
PIummer. In that case it was shown
that two of the jurors who had an
swered satisfactorily and been ac-
cepted, had previously expressed
opinions adverse to the prisoner.
One of them stated that "the people
ought to take Plummer out of the
Jail and hang him." and on other
occasions expressed q belief that he
was guilty of murder, the Supreme
Court directed new trial.
His Honor concluded as follows
The whole matter must be regret
ted. When two gentlemen on the
jury panel should so far forget
themselves on a case that was almost
certain to come before them, it does
not seem like the conduct of reason
able and sensible men. 1t does seem
strange that although it was only
two weeks ago that the conversation
on the BULLETIN article took place,
they are unable to say yes or no to
the aflidavits OF Vivas and Cluncy
but merely say 1--WE don't recollcct. -
There is nothing left for the Court
but to grant the motion for new
trial.
Following are the aflidavits filed
on the case:-
DEFENDANTS AFFIDAVIT.
|, j. r. Robertson, of Honolulu,
Oahu, Hawaiian Islands, make oath
and say:
/ am defendant in the above cause
At the trial thereof, on January
18th instant, | was asked by my at
torneys if | had any objection Ia
any of the jury panel, and replied
that knew nothing against any of
them, and left the matter entirely in
said attorneys hands.
The opinions and sentiments Of all
the jurymen were entirely unknown
to me previous to the trial and / had
no reason to suspect that they, or
any of them, were hostile to me, or
had ever expressed any opinion
-. I