The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-10-28
OPINION or THE COURT BY FREAR, J.

OPINION or THE COURT By FREAR, J.
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 Dis 5rict Court OF Honolulu,
was found guilty OF importing opium
contrary to the provisions of Section
l, Act y of the Laws of the Pro-
visional Government of the Hawaiian
Islands.
The first exception was taken to
the everything Of defendants objec-
ton to the drawing of q 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in another case bad been withdrawn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 excus}ng OF jurors is a matter
which, In the absence Of statutory
provisions 10 the contrary. lies in the
discretion OF the trial Judge, and
such discretion viii 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 could 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
deliberatiGg upon verdict after the
case had been submitted to them,
which might be many days; and in
some instances 1t might also be I'M
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, II making
up the jury in this case, notwith-
standing a number of challenges, the
remainder of the panel was not ex-
hausted. No talesmen were re-
CURED. Statutory provisions having
been complied with, the question is,
was there a fair and impartial jury.
It is not even suggested that there
was not such jury in this case The
weight of authority is in hs>. ~9ny
with the foregoing views, anc( ne
Courts have gone further than we
are required by the facts of this case
TO go.
In State as. Pitts, So Mo, $50, it
was held that when a portion OF the
regular panel were sitting in another
case, it was competent TO draw the
jury from the remainder e the
panel and, after exhausting that, to
complete the jury from the by
ISLANDERS. So in Bradley Cs. BRADLEY, 45
Ind, 67. In alexander gs. Oshkosh, SO
Wis, 277, it was held proper to ex
cuse twelve jurors foI the reason that
they had just been discharged in
another case. Ia limerick rs. Sloan, Is
Ia, 139, it was held proper to make
up jury OF one of the regular panel
and eleven talesmen, all the 9th.
Jurors of the panel having been Cor
cused by the Court. See also + inc
IS. State, 1 Blackf, 81, and Rer Eer cas-
farlane, 7 Haw., 352. Tex on
The sec0nd exception vR'uHer tina
refusal of the Court to a1ts. Nac- tire
ants counsel to make dir,
argument to the jury%as to the bra
having presented noilow defend I
is claimed as a rigb the closing VIII,
ton of Section 9, ,Tthe defendant int,
L i