The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1897-11-06

trial where the party has been msed by the Juror
Intercepted his qualifications Perhaps the case
Just referred found of due diligence
may be distinguished from the There the ques
tons asked knowledge of the upon the
the Jurors but had been made to give them
that knowledge Here the question such could be easily
by yes and without knowledge of the
There party his counsel appeared be somewhat dssais
fed with the silence of the and yet chose to proceed no
further Here the opposite counsel the prosecuting attorney
who asked the question: well defendants COUNSEL appears
have been satisfied But without relying upon these or
other distinctions entirely that, if general que
be allowed at ALL the silence of the jury when such
questions proper be relied unless there some
thing show suspicion, that the silence cannot be
relied In such cases. it the duty of Juror to speak, If
disqualified where the frame of the question calls for such
Indeed under such circumstances 1t would be
difficult whether remained silent not the
others answered Some mg h audbly, by nod
ding and all could be observed heard distinctly
No doubt considerable weg should be given the opinion of
the trial Judge whether due diligence had been used In
the present the trial Judge refusing trial apparently
based his opinion not circumstances going to show
that this particular audible visible to the
question under consideration should have been insisted but
upon the general proposition that such answer should be
insisted always On the whole while realizing that this is
point upon which there might naturally be asdfeence OF
opinion think that reasonable diligence exercised in
this and that a trial should be granted.
In view of conclusion the point already discussed it
will not strictly speaking be necessary pass upon the other
points raised but deem advisable nevertheless to
of Them particularly such relate to the form of the
Indictment and would be likely before this Court
in this case if not decided
The Indictment demurred upon the following grounds
which overrued and other which sustained
and remedied by a amendment
That the Indictment and indefinite in that it
charges embezement of $14O within months next preceding
the ninth ay of February 1897 and does specify date
upon which alleged ENLIGHTENMENT occurred The time
should be stated definitely convenient but the exact date
need be stated The the Indictment sufficient
in this respect See Enc Pl Pr. Az Comp L. pp 342,
345
That the Indictment uncertain and indefinite in that it
does specify whether the $40 the subject of
bezzement of than and if than each
pleaded distinctly The statute makes lawful to charge IN
the Indictment number of distinct of embezze
ment exceeding three, committed within the space of six
months Comp. 345 Only embezzlement is charged
1t that fact in words in the indictment
B. That the indictment is uncertain indefinite and INSULT
that does forth in what particular Office
employment in the District Court of Honolulu the defendant
employed The Indictment sets forth that the defendant
"a person employed in Department Of the Government of
the Republic of Hawaii wit: in the Judiciary Department
in the District Court of Honolulu The words OF the statute
"a person employed in department of the government
Penal Code Ch 49, The employment is sufficiently set forth
in the Indictment.
That the indictment insufficient in that it does alege
that defendant became entrusted with certain of the
Government by virtue of under the authority of his employ
ment said District Court The Indictment after setting forth
the employment of the defendant above continues and
such person employed being entrusted by the consent and
authority of said Government with certain of said Gov
ernment, DC This averment sufficient 1t follows the
statute.
s. That the Indictment is insufficient in that it does not
age that and became of the duties of the defendant
have receive handle control any of the Govern
under his said employment in the District Court No
such allegation necessary.
That the Indictment while purportng to charge embez-
Element does fact charge larceny oense for which de-
PENDANT committed The Indictment clearly charges
ENLIGHTENMENT.
The demurrer properly overued the above grounds
An exception also taken the overulng of motion to
quas the Indictment the ground that did not conform to
the charge upon which the defendant committed for trial
by the District Magistrate The alleged want of conformity
consists in the omission of the words Cler and Interpreter
before the words in the District Court These words
and the Indictment need follow the charge
the District Court verbatim, especially in unessenas
The remaining exceptions taken to the refusal allow
the jury to be drawn from the full number summoned the
admission of certain evidence the refusal certain
TONS the giving of other instructions compelling of the defend
ant testify in English the verdict being contrary to
the evidence and the refusal order the be polled
These exceptions raise questions that again
this case that may arise in different form if all
deem it best not to pass upon them
The exception to the overrung of the motion for
upon the ground that of the Jurors disqualified
tanned and a trial is ordered
Dep AtyGen'l b. P. Dole for prosecution,
c. Creighton for defendant