The Hawaiian gazette., 1893-10-31

| HUI nlbh IAO RoA NACo w q boAS-
consider this misconduct on the par
OF a Juror. The affidavits fled b.
defendants corroborate each othe
and do not stand alone on any ont
statement; the circumstances estab
lish the fact that these meetings anC
conversations did take place as stated
The counter affidavits filed by tbs
plaintiff are individual denials, but
they establish the fact that the Court
had instructed the jurors to abstain
from conversation with anybody
about the case during the recesses
The affidavit of Sam Kalaluhi also
corroborates the statement in regard
to Peter Davis getting a bottle OF
liquor from him, also to the CONVEX
sations had with Mr.. Magoon, al
though he denies having said things
that the others say he did.
After consideration of all the Aft
dsvits, We can only arrive at the con-
clusion that there was gross miscon-
duct on the part of some of the
jurors. It cannot be said that these
defendants had what they have right
to, that is, trial by a fair, impartial
and unprecedented jury.
Unexplained communications be.
tween juror and the successful par
ty to the suit, his friends, counsel or
agents, will lead to such an inference
of tampering as will avoid the YER
dict" Thompson on Trials, Sec. 1853
and cases there cited.
Corrupt attempt to influence the
verdict of a jury by other means
than evidence and argument in open
court, * + on grounds of pub
lie policy, is always ground for a new
trial, without reference to the merits
of the case, and whether successful
or not. The law is so sensitive upon
this subject, that sfidavits not ex
planned away, casting suspicion of
such misconduct on the prevailing
party will avoid a verdict. The rule
is applied with almost equal strin-
gency, whether such attempts pro-
coed from the preUaiEiHg party himself,
from has friends, or even from offcious
third persons. 1t is upon this principle
y * that unexplained communi-
cations between the jury and the
prevailing party, his counsel or
friends, create such a presumption
against the integrity of the verdict
that it will not be allowed to stand.
Afidavits of jurors are
always received to show attempts SO
dangerous to justice"
Ibid, Section $3.50 and cases there
cited.
"Where the misconduct was of |
such nature that prejudice might
nave resulted from it, presumption
If prejudice arises, which, unless re-
outted by the successful party, will
'equire the granting of new trial
* the irregularity must have
,een of such a character that its
natural tendency would he to dis
Iualify the jurors for the proper and
unbiased discharge of their duties"
Ibid, Section 2617 and cases there
tied.
In our opinion, the afidavits in
his case disclose such a state of facts
hat would have a natural tendency
D disqualify some of the jurors for
be proper and unbiased discharge
t their duties. And we do not find
nat the counter affidavits explain
way or rebuff these facts.
In the case of Roberts VS.. Jones,
0 Iowa, 525, the Court says: sit has
cen frequently held by this Court
nat we will not reverse an order of
ne Court below granting new trial,
Mess it is made clear + that
1e discretion of the Court below has
cen abused. A stronger case should
3 made to justify the interposition
I the Appellate Court, when new
'ial has been granted than when it
as been refused" Citing a number
! cases in the same State in support
! this.
We consider that considerable
eight should be given by US lin
lose cases) to the opinion and deci-
on of the trial Judge who has every
lcility to observe the actions of
arties, witnesses and jurors during
le progress of the trial, and the in
dents and circumstances surround !
g the case.
We therefore sustain the decision
the trial Judge, ordering that the
srdict be set aside and that new
ial be had.
Exceptions overruled.
G. W. Ashford for plaintiff; j. A.
lagoon for defendants. .
Honolulu, October 10, 1893.