The Hawaiian gazette., 1893-10-31
OPINION OF THE COURT BY BIcKER
TON, J.

OPINION OF THE COURT BY BIcKER
TON, J.
This cause came on for trial at the
February term, 1893, of the Circuit
Court of the First Circuit, and re-
suited in verdict for the plain.
tiff for possession of the land
claimed, to which the defendants
duly excepted as contrary to law
and the evidence, and gave notice of
a motion for new trial. A motion
for a new trial was fled and argued.
A number of grounds were set up,
one being the misconduct of the jury,
naming Sam Kalaluhi, Piikoi Okuu,
Koloa and Peter Davis particularly.
A number of afidavits on both sides
were filed. The Court after over
ruling all the grounds set up, except
ing the above mentioned one, says,
During the trial of the case the
Court was not satisfied with the &C
ton of several of the jurors, but this
of itself is not sufficient to grant
new trial, but 1 sm strongly i'm
pressed by the affidavits filed, that
there was such misconduct on the
part of the jury in this case as to
cast suspicion upon any verdict that
they rendered; and on this ground /
sustain the motion and order the
verdict set aside and that new trial
be had" To which decision and or
der the plaintiff duly noted and filed
exceptions. And the matter now
comes here on duly allowed bill Of
exceptions.
Defendants counsel contends that
this Court should consider and pass
on all the grounds taken by him in his
motion for a new trial, that the yer
dict was contrary to law and the evil
dence, etc., that were overruled by
the trial Judge. To be entitled to
this he should have excepted to these
rulings and come here on bill of |
exceptions; he prevailed on one
ground alone. We see no reason
why two bills of exception should
not be allowed and argued, one from
each side.
A man named Kupss who is on
very friendly terms with plaintiff
and family was constantly in attend
ance during the three days of the
trial, and was seen frequently in
close conversation with some of the
Jurors during the recesses of the
Court, and when others came near,
the conversations would stop at once.
This is clear from the affidavits of
Mshoe, Ksnsksnui, Police Officer
and Peter Davis. Peter
Davis, one of the jurors, met Mahoe
lone of the defendants) in the street
during the time the trial was on, and
said, "Yon cannot win the land, the
jury are on Kauhi's side (Kauhi was
assisting in the plaintiffs easel;
there is one man giving them food
and drink" He also said Nance was
in the right if the jury, "had not
been bought;" then Sam Kalaluhi,
another juror, came along with some
gin in a bottle and gave It to Davis,
then Davis said to Mahoe, II
don't say to you that this
bottle came from Kauhi," and, con-
inuing, said to Ksnakanui, "You
can't win your CASE" All this ap.
pears from the affidavits of Mshoe,
and Sam Haluapo. There
are affidsvits as to remarks made to
defendants by some of the Jurors,
such as mo use for you to try to
make q case of this, you will lose
your money for your lawyer and the
God for your witnesses" etc.
In the case of Dana vs. Roberts Il
md 2 Root, 1874 and 45D the Court
lays: THE principal guard upon
arors in this state is their oath and
heir virtue. If they are suffered to
inter into conversation with people
the causes they have under
the purity of trials by
ury, the great barrier of liberty and
ustice will be corrupted; it ought,
therefore,, to be guarded with the
most vigilant attention" This case
S cited in Graham & Waterman,
New Trials, p. 100.
Then there is the very contradic-
DRY statements made by Sam Kals-
uhi as to where he got the bottle of
nm. The sfidavits of Peter Davis,
me of the jurors, corroborstes all
hese statements; he also says that
sam Kalaluhi was working for the
plaintiff, because he tried to infiu-
nee me;" when the witnesses we're
estifying he would say, "You can't
rust that man; it is no use to {
rust that man" This all goes to 6
how that some of these jnrors had t
'rejudice and were biased and pre-
udiced, and showed hostility tow i
rds defendants before the trial had r
losed and the case submitted to :
hem. What Davis said to Mahoe r
bout where the bottle of gin came :
rom, can only be construed one :
ray, that is, he intended Mahoe to
Understand, that it did come from
lauhi or the plaintiff, perhaps with
be object of getting something J