The Hawaiian gazette., 1893-10-31
OPINION OF THE COURT BY FREAR, j

OPINION OF THE COURT BY FREAR, j
| This case comes up on exception!
from the Circuit Court of the Firs
Circuit, where at the last Angus
Term the defendant, upon his appea.
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 tc
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in another case had been withdrawn
by order of the Court.
The excusing 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 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
celebrating upon a verdict after the
case. had been submitted to them,
which might be many days; and in
some instances it might also be IN
reasonable and against the interests
of justice to require jurors to sit
again Immediately after finishing a
long and wesrisome 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 os. Pitts, IS 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 of the
panel and, after exhausting that, to
complete the jury from the by
ISLANDERS. So in Bradley Us. Bradley, As
Ind, 81. In alexander Cs. Oshkosh, 80
Wis, 277, it was held proper to ex-
cuse twelve jurors fol- the reason that
they had just been discharged in
another case. In Emerick 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-
cused by the Court See also Fuller
Ds. State, l Blackf., GA, and ReE cs. Nae
farlane, 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
IS claimed as a right under that por-
ion of Section 9, Chapter LVI., Laws
If 1892, which reads as follows: If /
he defendant shall present any evil
lence, he, or his counsel, shall first,
after 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 commended that this
tatute by implication entities the
defendant to the closing argument if
lie presents no evidence.
By the express terms of Section
B, Chapter XII, Laws of 1876
Comp. Laws, page 351), latter the
!ccused or his counsel has summed
Up and closed his case, the prescott
ng attorney shall have the right to
UNI up the entire evidence and close
be debate" Such also is the pre-
ailing practice in the absence of
tatute. In all (criminal) cases,
he right to open and close is with
be prosecution, unless a different
ule is declared by statute. This is SO,
Though the accused offers no aTi.