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

have taken the oath TO the Government. which reply
was made
1t conended that the person who had taken the oath
incapable under the Constitution Of being Juror and hence
Juror, and that therefore the defendant tried
by only eleven Jurors and by twelve undoubtedly
his right This appears have been the view taken in Shane
q CLARK, Ga Maryland referred in Thomp Mer,
ure Sec 1922 But the contrary appears have been held
in Gilbert Rider Ga Connecticut referred CrOy o.
State 30 Ind 1897 In these cases as in the case at
bar the juror had not taken the required OATH We have
to the original report of either of these similar
difference of opinion respect of other disoualcatons
of uroone class of holding that if the Jurors dis
qualification is discovered until after verdict the moving
party entitled of right trial; the other class hold
that the disqualification of Juror though discovered
until after verdict is of itself sufficient ente party
trial but that the granting of a trial in such
depends upon the circumstances See cases cited in Thomp
Mer Jures supra and homp, Trials Sec 1l6; also
Graham d Waterman, New Trials, p 221 ct seq
If the former view correct the defendant clearly entitled
to trial Let assume however, without deciding that
the correct view question of great importance
in determining whether trial should be granted whether
due diligence exercised ascertain the disqualification
before the juror If due diligence used
the party would be much the position that he would
be in had he used due diligence and asceaned the dsqual
caon and made objection before the juror sworn
which he would generally not be entitled trial
But if he had used due diligence and had discovered the
disqualification until after verdict he would be entitled new
trial though the disqualification did go the in
egrt capacity of the juror and though actual pre-
JUDGE had probably resulted the party In like the
it would be impossible to show whether he had been
actually prejudced not He would be preudced in law
by being deprived of legal right without his and
through fault negligence Of his He should be
placed in the position in which he would be he had asceaned
the disqualification before the jury had been and had
objected the and his objection been overrued and
he had excepted to the ruling In such he would be
titled to trial though actual prejudice could be
shown to have resulted to him from the ruling Not that he
would be entitled trial in all merely because he
had been denied legal right For instance the admission of
improper testimony the giving of instruction
against objection would generally be denial of legal right
and yet sufficient in all new trial It
difference We
not attempt to classify rights in this respect Justify all the
distinctions that made The authorities whether right
wrong practically unanimous the effect that denial of
the right to be tried by qualified entities the party thereby
legally prejudiced to trial.
In general the of due diligence in cases like the present
is whether the juror properly questioned upon his roi,
dire His upon such examination may be relied
and if party msed thereby he may new trial upon
discovery of the disqualification after verdict though the dis
qualification is of general character from which actual
prejudice had probably resulted State Nash, 10 So a
1874; Lamphi9 State 20 Ind. 49, Hudspeth Herston
Ga H. 1873; Watts Ruth, 80 Oh. ST. 80; Buck Hughes
1877 Ind 49, T. s. Christensen "a Pac Otah 61S: Wiqgin
Pnmer 81 N. H. PSI The Texas courts however hold that
though the juror questioned his roir dire and mis-
led the party trial should not be granted unless it also
appears that the probably pudced by the
OF the obnoxious Juror upon the panel Brennan State 30
Tex 267 Leeper State IA w. 39s But these decisions
based largely upon special provisions of the statute and
see the strong dissenting opinion in the latter
In the present have seen, the asked if
they had taken the oath the Government This question:
it is true put by the prosecuting attorney but not
that should be repeated by the defendant Republic
a. Hapa, Haw. 622 1t is also true that the question
addressed to the jury whole This method is often pur
sued under practice and particular objection
where the question definite that under consideration
and admits of such definite In Hmdspeh Heson
and Vaggn PMmer supra the questions put the
jury whole
But reply made to the question. Was the deen-
dnt negligent in not insisting upon reply? Or he JUST
fed in assuming that silence equivalent reply in the
affirmative? In Wiggin Plumr, SUPRA reply made
The court set aside the verdict SAYING When the inquiry
made of the jurors if either of them had heard much of the
or had formed opinion, Mr. Coffin (the juror in question:
should have stated the facts, excused himself" In T. s.
a. Christensen supra, earlier decided by the
court referred to in which the Jurors whole asked
several questions to which made They
then asked other questions by counsel for the defendant
to which also made and counsel added 81
will not put questions directly of you He then asked
several questions and added: "You don't
and will not the question of particular
ly The court held there negligence in making
sufficient inquiries In commenting this the in
IT, s. a. Christensen. No statement of the facts const
uting the alleged oense made the Jurors and hence
the court say the jurors could not well have known whether
they had opinion the guilt innocence of the defendant
nd rirfo fbo