The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-02-28
OPINION OF THE COURT By JUDGE COOPER.

OPINION OF THE COURT By JUDGE COOPER.
The defendant was convicted of
robbery and his motion for q new
trial was overruled.
At the hearing on the motion three
grounds were presented to support
the claim for q new trial; first that
the verdict OF the jury was contrary
to the law and weight of evidence;
second, misconduct on the part OF
the jury and bias and prejudice on
the part Of certain members thereof;
third, newly discovered evidence
tending TO prove the innocence of
the defendant
As to the first ground. Although
we do not find that there was an
abundance OF proof of the defend
ants guilt, yet the question having
been submitted TO the jury and there
being some evidence to support their
finding, we must hold that it was
sufficient as it is not outWeighed by
the evidence introduced on his be-
half
The consideration of the second
ground involves the solution Of
several questions of law, as well as
the determination of the efficiency
of the affidavits.
1t was urged by the prosecution
that the defendant had waived his
right to object to the jurors, because
he had failed to avail himself of his |
right to examine them as to any bias
or prejudice that they might have
against him, and that he cannot now
claim that the jurors were disquali-
hed although the fact of their Illwill |
was only ascertained after verdict; |
and further, that as the record shows |
that the jurors had not been put on
their rOir dire the result of their ex-
aminations could not be relied upon,
to show that they incorrectly stated !
their qualifications to serve as Jurors |
on the case. The defendants answer
to this position is that the necessary !
questions were pat to the Jurors by
the prosecuting officer, and that he |
relied upon the answers elected from
the jurors and was led to believe that
they were impartial, and that he |
would have fair trial at their hands
and that 1t was immaterial so far as
the validity OF the examination was
concerned, whether they were under
oath or not.
The rule seems to be well settled
that where a disqualification exists
IN juror which Is either known 10
the party, or which might have be-
come known upon proper examina-
non then no exception lies If the
Juror Is allowed to sit. It is a matter
Oh challenge and il the right is not
exercised the defendant cannot com.
PLAIN; The reason for this being
mat he may have allowed the Juror
10 try the case for the express pur-
pose OF having an exception should
ne verdict go against him.
The record shows that among
others, the following question was
out to Halualani, one of the iurors
Sho are now objected to: 20.
jould you sit on this case and give a
ar verdict according to the evil
ience? Ans. Yes sir, 1 am unbias-
ID and would be governed by the
evidence"
We think that this gave the de
eDdant an assurance that the Juror
would give him a fair trial, and that
7 should not be taken against him
hat the question was asked by the
'rosecutiDg officer and not by his
'Wn attorney. To hold otherwise
would necessitate the repetition of
he same questions by the defense, as
lad already been put by the prosecu
Ion and this 1t seems to Us would be
LII the defendant was made to
'eIleVe by the juror that he was i'm
PARTIAL and unbiased, and it should
afterwards appear that the Juror had
answered untruly for the sake of re-
aiming his position on the trial panel,
hen the defendant should not be
made to suffer the consequences
which may have resulted from hav-
ng person on the jury, who enter
AIMED illwill or bias agains. him.
Ne find nothing In the lone list of