The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1893-10-31
OPINION OF THE COURT BY FREAR, ]

OPINION OF THE COURT BY FREAR, ]
This case comes up on exceptions
from the Circuit Court of the First
Circuit, where at the last August
Term the defendant, upon his appeal
from the District Court of Honolulu,
was found guilty of importing opium
contrary to the provisions of Section
l, Act IL of the Laws of the Pro-
visional Government of the Hawaiian
Islands.
The first exception was taken to
the overruling of defendants objec-
ton to the drawing of a jury from
the remainder of the regular panel of
thirty six jurors, after the names of
twelve jurors who were then sitting
in another case bad been withdrawn
by order of the Court.
The e1cusing of jurors is matter
which, in the absence of statutory
provisions to the contrary. lies in the
discretion of the trial judge, ard
such discretion will not be interfered
with unless it has been abused or
unless some prejudice has resulted
therefrom to the complaining party.
1t is not an abuse of discretion to
excuse twelve jurors for the reason
that they are engaged in another
case. If this conld not be done,
much delay and expense might need
lessly be incurred, for no new case
could be called while jury was en-
gagged in hearing another case or in
celebrating upon verdict after the
case. had been submitted to them,
which might be many days; and in
some instances it might also be un-
reasonable and against the interests
of justice to require jurors to sit
again Immediately after finishing a
long and wearisome case or after
sitting in several cases success
lively. No prejudice has been
shown in the present case to
have resulted to the defendant
by the withdrawal of the names of
the twelve jurors. Indeed, in making
up the jury in this case, notwith-
standing number of challenges, the
remainder of the panel was not ex-
hausted. No talesmen were re-
quired. Statutory provisions having
been complied with, the question is,
was there fair and impartial jury
1t is not even suggested that there
was not such jury in this case. The
weight of authority is in harmony
with the foregoing views, and some
Courts have gone further than we
are required by the facts of this case
to go.
In State cs. Pitts, 5S Mo-, $50, it
was held that when a portion of the
regular panel we're sitting in another
case, it was competent to draw the
jury from the remainder of the
panel and, after exhausting that, to
complete the jury from the by
ISLANDERS. So in Bradley rs. Bradley, As
Ind, 81. In 4Ierdnder Cs. Oshkosh, 33
Wis, 277, it was held proper to ex-
cuse twelve jurors fo1 the reason that
they had just been discharged in
another case. In Emertck rs. Sloan, Is
Ia, 139, it was held proper to make
up jury of one of the regular panel |
and eleven talesmen, all the other
Jurors of the panel having been ex-
,used by the Court. See also Fuller |
IS. State, l Blackf., Ga, and Rer 1s. Mae-
'drldne, z Haw., 352.
The second exception was to the
refusal of the Court to allow defend
ants counsel to make the cloc:ng
to the jury, the defendant
having presented no evidence. This
S claimed as a right under that por-
ion of Section 9, Chapter LVI., Laws
If 1892, which reads as follows: Z" If
he defendant shall present any evil
lence, he, or his counsel, shall first,
!fter the close of the evidence, ad-
lress the jury upon the facts, after
which the opposite side shall be en-
tiled to the closing argument upon
he facts" 1t is contended that this
tatute by implication entities the
defendant to the closing argument if
le presents no evidence.
By the express terms of Section
5, Chapter XL., Laws of 1876
Comp. Laws, page 351), latter the
ccused or his counsel has summed
Ip and closed his case, the prosecut-
ng attorney shall have the right to
um up the entire evidence and close
he debate" Such also is the pre-
ailing practice in the absence of
tatute. In all (criminaI) cases,
he right to open and close is with
be prosecution, unless a different
ule is declared by statute. This is so,
1thonUb the oo1T7ea1 -,fra-, - - J