The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-02-28

authorities presented by the prosecu-
| ton against this position.
| AS to the sufficieDcy OF the atl-
| davits. The defendant must show
! affirmstiyeIy that he had no knowl-
edge of the alleged bias or prejudice,
and that he used due diligence in
endeavoriug to ascertain II such
existed before the jury was sworn to
try the case; and also, that the jurors
had done something more than to
make q loose expression OF opinion
as to his guilt The acts OF q juror
must go far enough to show that
actual ilIwill existed against the de-
PENDANT. Do the afidavits in this
case show all this? We think they
do.
From the nature of the statements
in the affidavits, it seems almost i'm
possible that such a general feeling
of hostility among the residents Of
Eva, could exist against the defend
ant without his knowing it, but the
affidsvits of the defendant and his
attorney are explicit on this point,
and in the absence of anything
showing actual knowledge, we deem
this ground sufficiently covered.
We find nothing in the affdavits
which support the theory that
Keomska was disqualified, but as to
Hslualani, we think there is much to
show that he was unfriendly towards
the defendant, and that this feeling
prompted his statements and may
have Influenced his actions while
serving on the jury, and We do not
feel like saying that the defendant
had fair trial with such q man on
the jury who tried him.
In regard to the point that the
Juror was not sworn before being ex-
amined. In State v. Shelleby, 8 Ia.
500, the Court say: eff the juror
had been examined before he was
sworn and upon such examination
had stated that he had not formed or
an unqualified opinion or
belief that the defendant was guilty
or not guilty Of the offence charged,
If it should afterwards appear that |
the Juror had sworn falsely and that |
he had In fact formed or expressed |
an opinion that the defendant was |
guilty, we think it would afford good |
cause for granting a new trial. But :
to take advantage Of such |
fact, must show by the record that
the Juror was examined on oath as to |
whether he had formed such opinion
or belief, and if it is not shown that
he was so examined it Is no ground J
for a new trial that the jurors |
opinion was made up beforehand"
This rule seems to have been |
adopted In several other cases, and |
while we do not criticise the ruling |
we are of the opinion that our |
practice does not warrant its applica- |
ton In this case. In the large majority |
OF cases In our trial courts, the jurors |
are examined as to their qualiics-
tons without being put on their corr
dire, and We believe that an injustice
would be done to say now that be-
cause the juror was not sworn his
could not be relied upon
for that reason.
We do not think that a sufficient
showing has been made to support
he claim for q new trial on the
ground of newly discovered evidence.
1t Is contended for by the prosecu.
ion that this Court should adopt the
'ulP, that the granting or refusing a
10" AIaA 10 a nbbIcE I0oIlDB III ln0
onDd discretion of the trial Judge
whose decision will not be reversed
Unless it is clearly shown that the
has been abused. It must
'e admitted that this appears to be the
consensus OF authority in the United
states, but We perfer 10 follow the
ormer decisions of this Court that it
8 a proper matter for exception and
will be reviewed as such. See Hawai-
George v. Hanakaulani Holt, 9
law. p. -
A new trial is ordered on the
round of bias and prejudice on the
,art of the juror Halualani.
A. q. NJ. Robertson, Dep. Att.
ZEN. for prosecution; w. a. Kinney
or defendant.
Honolulu. Febrnarv % 1898