The Hawaiian star. [volume] (Honolulu [Oahu]) 1893-1912, 1912-03-26

the panel Of twonty.three and a sum
mons was issued accordingly; that
the grand jury as thus constituted,
found and returned the indictment in
question; that the clerk, not only
drew the names Of twenty.three per-
sons to serve as grand jurors, but that
he drew the names Of thirty-fve per-
sons TO serve as grand jurors; that
this is the first opportunity which
the defendant has had to raise these
objections and challenge to the grand
jury, in that he was arrest
ed and confined in the county prison
subsequent to the impanel-
! ing of the grand jury and
was not present when the persons con
shutting said grand jury
were, or any, or either, Of them were
sworn or examined upon their voir
dire, or when the said grand jury
was impaneled and sworn,
The prayer is that the indictment be
qua.shed and dismissed"
Following is the conclusion of the
courts opinion:
I'VE can not say in this case that
the action of the circuit judge was
such as to render the organization of
the grand jury Illegal or such as to
vitiate the Indictment. We are also
of the opinion that the names of the
persons who constituted the grand
jury were drawn by lot; that the
grand jury was legally constituted;
and that the indictment against the
defendant is valid The demurrer to
the plea in abatement should be sus-
tanned. The question reserved, there
fore, is answered in the affirmative"
f, w. Milverton, first deputy city
and county attorney of Honolulu, for
the Territory; Lorrin Andrews for de-
PENDANT
Chief Justice Robertson gives a eau
ton to judges to stick to the law in
future, in his concurring opinion
which reads as follows;
Concurrine Opinion Of Robertson, c. J.
THE irregularity complained of is
not such as to warrant the duashing
of the indictment, The procedure
prescribed by the statute should,
however, be followed by the circuit
| judges. Section 1774 of the Revised
Laws provides that if a person emit
! tied to be excused from jury duty
has been summoned as a juror he
may make and transmit his AFFIDAVIT
setting forth his reason for claiming
an excuse, and that the same shall
be considered by the judge when the
name of such person Is called If
the affidavit is deemed sufficient in
substance it shall be received as an
excuse for non-attendance in per son
and the court will order it to be fl
ed by the clerk. And section 1884
provides that at the time when the
order for the grand jurors is return
able, OF as soon thereafter as con-
venient, the clerk under the direction
of the court, shall call the names
of those summoned, and the court
may then hear excuses of jurors sum,
moned.'
"A trial judge ought not to sub
stitute a procedure of his own for
that prescribed by the legislature
Should a practice so to do grow VI
it would be apt to cause the legisla.
ture to go to the extreme of making
the statutory provisions mandatory
as was done in Oklahoma. See Sharp
v. United States, 1873 Fed. SIS. Per
haps the circuit judges should be au-
thorized to set aside the names of jur-
ors for such reasons as appealed to
the judge in the case at bar at the
time of the drawing, but the proce-
dure should be prescribed by the leg
islature and not inaugurated by the
courts"