11 Haw. 213 | Haw. | 1897
OPINION OF THE COURT BY
Tbe defendant was tried and convicted in tbe Circuit Court on an indictment for embezzlement and now comes bere on numerous exceptions.
One of these exceptions was taken to tbe overruling of a motion for a new trial based on several grounds, one of wbicb was tbat one of tbe jurors wbo tried tbe case bad not taken tbe oatb to support tbe Constitution, Laws and Government of tbe Republic of Hawaii, as required by Article 101 of tbe Constitution. Tbis article provides tbat “no person shall be eligible to be * * * a Juror, until be shall have taken and subscribed” such oatb. It was shown by affidavits and not disputed tbat tbe juror J. W. K. Keiki bad not taken tbe oatb
It is contended that the person who had not taken the oath was incapable under the Constitution of being a juror and hence was not a juror, and that therefore the defendant was tried by only eleven jurors and not by twelve as was undoubtedly his right. This appears to have been the view taken in Shane v. Clark, (a Maryland case referred to in Thomp. & Mer., Juries, Sec. 302). But the contrary appears to have been held in Gilbert v. Rider (a Connecticut case referred to in Croy v. State, 32 Ind. 389). In each of these cases, as in the case at bar, the juror had not taken the required oath. We have not access to the original report of either of these cases. A similar difference of opinion exists in respect of other disqualifications of jurors, — one class of cases holding that if the juror’s disqualification is not discovered until after verdict, the moving party is entitled as of right to a new trial; the other class holding that the disqualification of a juror, though not discovered until after verdict, is not of itself sufficient to entitle a party to a new trial but that the granting of a new trial in such case depends upon the circumstances. See cases cited in Thomp. & Mer., Juries, supra, and 1 Thomp., Trials, Sec. 116; see also Graham & Waterman, New Trials, p. 221 et seq.
If the former view is correct, the defendant is clearly entitled to a new trial. Let us assume, however, without deciding, that the latter is the correct view. A question of great importance in determining whether a new trial should be granted is whether due diligence was exercised to ascertain the disqualification before the juror was sworn. If due diligence were not used, the party would be in much the same position that he would be in had he used due diligence and ascertained the disquali
In general tbe test of due diligence in cases like tbe present is whether tbe juror was properly questioned upon bis voir dire. His answers upon such examination may be relied on and if a party is misled thereby be may have a new trial upon discovery of tbe disqualification after verdict, tbougb tbe disqualification is of a general character, from wbicb no actual prejudice bad probably resulted. State v. Nash, 13 So. (La.) 734; Lamphier v. State, 70 Ind. 317; Hudspeth v. Herston,
In the present case, as we have seen, the jury were asked if they had taken the oath to the Government. This question, it is true, was put by the prosecuting attorney, but it was not necessary that it should be repeated by the defendant. Republic v. Hapa, 9 Haw. 622. It is also true that the question was addressed to the jury as a whole. This method is often pursued under our practice and we see no particular objection to it where the question is as definite as that now under consideration and admits of such a definite answer. In Hudspeth v. Herston, and Wiggin v. Plumer, supra, the questions were put to the jury as a whole.
But no reply was made to the question. . Was not the defendant negligent in not insisting upon 'a reply? Or was he justified in assuming that silence was equivalent to a reply in the affirmative? In Wiggin v. Plumer, supra, no reply was made. The court set aside the verdict, saying: “When the inquiry was made of the jurors, if either of them had heard much of the case, or had formed any opinion, Mr. Coffin (the juror in question) should have stated the facts, or excused himself.” In U. S. v. Christensen, supra, an earlier case decided by the same court is referred to in which the jurors as a whole were asked several questions, to which no answer was made. They were then asked other questions by counsel for the defendant,— to which also no answers were made, and counsel added, “I will not put questions directly to any of you.” He then asked several more questions and added: “You don’t seem to an
In view of our conclusion on the point already discussed, it will not, strictly speaking, be necessary to pass upon the other points raised, but we deem it advisable, nevertheless, to pass upon a few of them, more particularly such as relate to the form of the indictment and would be likely to come before this Court again in this case if not decided now.
The indictment was demurred to upon the following grounds which were overruled and one other ground which was sustained and remedied by an amendment.
1. That the indictment is uncertain and indefinite in that it charges embezzlement of $140 within six months next preceding the ninth day of February, 1897, and does not specify any date upon which the alleged embezzlement occurred. The time should be stated as definitely as convenient, but the exact date need not be stated. The statement in the indictment is sufficient in this respect. See 7 Enc. Pl. & Pr. 444; Comp. L. pp. 342, 345.
3. That the indictment is uncertain, indefinite and insufficient in that it does not set forth in what particular office or employment in the District Court of Honolulu the defendant was employed. The indictment sets forth that the defendant was “a person employed in a Department of the Government of the Republic of Hawaii, to wit: in the Judiciary Department in the District Court of Honolulu.” The words of the statute are “a person employed in any department of the government.” Penal Code, Oh. 18. The employment is sufficiently set forth in the indictment.
4. That the indictment is insufficient in that it does not allege that defendant became entrusted with certain moneys of the Government by virtue of or under the authority of his employment in said District Court. The indictment, after setting forth the employment of the defendant as above, continues: “and as such person so employed, being entrusted by the consent and authority of said Government with certain moneys of said Government,” &c. This averment is sufficient. It follows the statute.
5. That the indictment is insufficient in that it does not allege that it was and became one of the duties of the defendant to have, receive, handle or control any money of the Government under his said employment in the District Court. No such allegation was necessary.
6. That the indictment while purporting to charge embezzlement does in fact charge larceny, an offense for which defendant was not committed. The indictment clearly charges embezzlement.
The demurrer was properly overruled as to the above grounds.
An exception was also taken to the overruling of a motion to quash the indictment on the ground that it did not conform to the charge upon which the defendant was committed for trial by the District Magistrate. The alleged want of conformity consists in the omission'of the words “Clerk and Interpreter” before the words “in the District Court.” ■ These words were unnecessary and the indictment need not follow the charge in the District Court verbatim, especially in unessentials.
The remaining exceptions were taken to the refusal to allow the jury to be drawn from the full number summoned, to the admission of certain evidence, the refusal to give certain instructions, the giving of other instructions, compelling of the defendant to testify in English, to the verdict as being contrary to the evidence, and to the refusal to order the jury to be polled. These exceptions raise questions that may or may not arise again in this case, or that may arise in different form if at all and we deem it best not to pass upon them now.
The exception to the overruling of the motion for a new trial upon the ground that one of the jurors was disqualified is sustained and a new trial is ordered.