The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-10-27


them. What Davis said to Mahot
about where the bottle OF gin cams
from, can only be construed on,
way, that Is, he intended Mahoe t
understand, that IL did come from
hauhi or the plaintiff, perhaps witt
the object OF getting something
from the defendants. This certainly
was improper conduct on the part oil
juror. Jurors when they are separ
ated for the night, while case Is on
trial, have no right TO discuss the
matter either between themselves or
with outsiders, and most certainly
not with the parties to q suit. We
/ consider this misconduct on the part
Of juror The ahidavits fled by
defendants c0rroborate each other
and do not stand alone on any one
statement; the circumstances estab-
| lish the fact that these meetings and
conversations did take place as stated.
The counter affidavits filed by the
| 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
! c0rroborates 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 atfi-
davits, we can only arrive at the con-
clusion that there was gross miscOn-
duct on the part of some of the
jurors. 1t cannot be said that these
defendants had what they have right
to, that is, q trial by fair. impartial
and unprejudiced 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. 2559
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 new
trial, without reference to the merits
of the case, and whether successful
or not. The law is so sensitive upon
this subject, that affidavits not ex
planned away, casting suspicion of
such misconduct on the prevailing
party will avoid verdict The rule
is applied with almost equal strin-
gency, whether such attempts pro-
ceed from the prevailing party himself,
from his friends, or even from otici0us
third persons. 1t is upon this principle
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 t-,ne & 8
X Affidavitsrant- - stand.
always r esce5 as opnS55 of Jurors are
2s r, nv, Fed to show attempts so
I dangerous to justice"
Ibid, Section $3.50 and cases there
cited.
"Where the misconduct was of
such nature that prejudice might
have resulted from it, presumption
of prejudice arises, which, unless re-
butted by the successful party, will
require the granting Of new trial
x the irregularlty must have
been of such a character that It's
natural tendency would be to dis,
qualify the jurors for the proper and
unbiased discharge of their duties"
Ibid, Section 2617 and cases there
cited.
In our opinion, the affidavits in
this case disclose such state of facts
that would have natural tendency
to disqualify some of the jurors for
the proper and unbiased discharge
of their duties. And we do not find
that the counter affidavits explain
away or rebuff these facts.
In the case of Roberts VS.. Jones,
80 Iowa, 525, the Court says: cit has
been frequently held by this Court
that we will not reverse an order of
the Court below granting a new trial,
unless it is made clear * * that
the discretion of the Court below has
been abused. A stronger case should
be made to justify the interposition
of the Appellate Court, when a new
trial has been granted than when 1t
has been refused" Citing a number
of cases in the same State in support
of this.
We consider that considerable
weight should be given by US lin
those cases) to the opinion and deci-
sion of the trial Judge who has every
facility to observe the actions Of
parties, witnesses and jurors during
the progress Of the trial, and the in
cidents and circumstances surround
ing the case.
We therefore sustain the decision
of the trial Judge, ordering that the
verdict be set aside and that new
trial be had
Exceptions overruled.
G. w. Ashford for plaintiff; J. A.
Magoon for defendants.
Honolulu, October 10, 1898.