The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1895-02-19

TON, j..
This case was heard at the Novem
Der Term of the Circuit Court of thu
First Circuit, having come there OF
appeal from the District Court o.
Honolulu. The jury found a YER
dict of guilty against the defendant
Ksniku, and q verdict of not guilty
in the cases of the other five defend
ants. A motion for q new trial in
the case of Kaniku was argued and
overruled and the matter comes here
on bill of exceptions. The grounds
raised in the motion for a new trial
were:
First. That the verdict was con.
trary to the law and the evidence.
Second. That one of the jurors,
after the prosecution had closed its
evidence, but before all the evidence
in the case had been put in,-Was
heard by an outsider to say to de-
PENDANTS "One of you is (hewa)
guilty." and also Repent ye for the
Kingdom of Heaven is at hand"
Third. That one of the jurors was
a poundkeeper.
Fourth. That one of the jurors
had not taken the oath required by
Art. 1OI of the Constitution. It sp-
pears that the juror has taken the
oath since the trial.
As to the first point, after a care
full review of the evidence, we find
that it is ample to warrant the jury
in finding as they did.
As to the second point, which may
be properly termed misconduct Of
jurors, the affidavits of Frank Pahia,
E. Kaniku Pahis, Kukons (k),
Kimons, Kaimi and Kaimswsho, set
forth that one, John Noble, one of
the jurors in the case, said to the de-
PENDANTS presumably during recess)
at the Court House, while the case
was going on and before the evidence
was all in, "One of you is hewa"
guilty and advised them to repent.
KaimaNaho In his affidavit also
states that he heard both John Noble
and KAPPA (slso one OF the jurors In
the case) say the same thing to the
defendants. The affidavit of Frank
Pahia states that he heard John
Noble say this to the defendant at
the Court House and IN the presence
of other jurors, and some strangers
on the 9TH OF November, which was
seven days before the trial. These
affidavits are undenied. This was
undoubtedly improper conduct on
the part Of these two jurors, but the
question for Us is, was it such mis-
conduct as would require us to order
a new trial. The use OF such
language before the trial and in the
presence Of jurors might tend to
create prejudice or bias against the
defendants or any of them and GER
tainly such language, when used dur.
ing the time the trial was In progress,
would indicate that those two Jurors
had formed and expressed an opinion
as to the guilt of one of the defend
ants before they had heard all the
evidence In the case on both sides.
1t would also seem from the affidavit
of Frank Pahia that the juror Noble
had formed an opinion and express
ed it before he had heard any evil
dence at all. These declarations |
certainly showed bias on the part of
these two jurors. The conduct of
these jurors was not that OF unpre-
JUDGED and unbiased jurors. "a
new trial has been granted on &C
count of expressions made by juror
to his fellows showing such prejudice |
against the accused as untitled him |
for juror"
Thompson on Trials, Sec. 1851.
"Where the misconduct was of |
such a 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"
Thompson on Trials, Sec. 2617.
It is not only the fact that the
mind of one or more jurors was
biased and preiudiced against any
or all of the defendants, and that it
might work an injustice against the
defendants, but it might be the
influence of these jurors
over the remaining jurors against
fair and impartial consideration of
The case on its merits, which the de-
'endants in every case are In every
way entitled to.
In the case of Maria Kaanaana V.
Keahi (k) ct al. decided by this
Court October 10, 1893, it is held that
1 new trial should be ordered on the
ground of misconduct of the jury,
certain jurors having held conversa-
ions with parties defendant showing
hostility against them. In that case
his subject is fully discussed by the
Court and the conclusion arrived at
8 supported by large number OF
and we adopt them "a
pply ing to the case at bar. We are Of
be opinion that tue grounds held TO
IA sufficient for ordering a new trial
D the above cited case are not as
tropg as the grounds in the case at
ar. This exception is sustained,