15 Haw. 602 | Haw. | 1904
OPINION OF THE COURT BY
This case comes up on exceptions to tbe overruling of a challenge to the array of jurors and motion to quash the venires under which they were summoned, and to a refusal to allow the clerk of the court to testify in support of the challenge and motion. The case was one of assault and battery appealed to the Circuit Court from the District Court of South Hilo. The chai-
Under the jury laws (C.L., Chap. 90, and Laws of 1892, Chap. 57, Sec. 82) in force at the date of the annexation of these islands to the United States, the Judge and the Clerk of the Court twice a year prepared lists of fifty native Hawaiians and fifty persons of foreign parentage in certain circuits, and fifty native Hawaiians in other circuits, and in the latter circuits, if a jury composed wholly or in part of foreigners was needed, a sufficient number of foreigners were summoned for the purpose. The Clerk, at least twenty days before a term, in the presence of a judge, drew from a box containing the names of the persons so selected, twenty-four names, except in the first circuit, in which thirty-six names were drawn. The persons whose names were thus drawn were summoned by the sheriff, and the twelve jurors required in any particular case were drawn from these, subject to challenges. Juries were obtained in this way after annexation and until the Territorial government was established. The Organic Act, which established that government, made radical changes in the jury system. It not only introduced the grand jury and required unanimity in verdicts of trial juries, but abolished race and mixed juries. Sec. 83. The changes were so sweeping that it was a serious question whether enough of the old laws remained to be effective or workable.
Circuit Judges seem to have differed as to whether the old jury law was operative after the Organic Act took effect. Some obtained juries by proceeding under that law as nearly as they could; others by issuing open venires to the sheriffs. The Judge in the circuit now in question, in his effort to avoid any question of illegality, endeavored to obtain juries in both ways — by proceeding under the statute in the first instance and then issuing an open venire to the sheriff, with an oral direction, as the defendant contends, to summon the same persons.
The defendant contends that error was committed in this instance in each course pursued, whichever was the correct course, and that the correct course was by open venire as at common law.
It appears that two sets of venires were issued for the term, each consisting of one venire for twenty-four named jurors drawn from the list of fifty under the statute and one open ve-nire, with, as contended, an oral direction to summon the same twenty-four persons.
The ground relied on for quashing the venires that were open in form is that they were not open in reality because, as contended, the sheriff did not choose or select the jurors so summoned or have an opportunity to do so but was obliged by the oral order of the Judge to summon the persons drawn by the Judge and the clerk. Inasmuch as, in our opinion, it was proper to proceed under the statute, it is unnecessary to say whether the open venires in question, if valid in other respects, were invalid on the ground relied on, or to say whether, if the statute were inoperative, juries could be obtained by- open venire as at common law, although the view was expressed in one of the opinions in Hawaii v. Mankichi, 190 U. S. 197, 217, that they could not be so obtained, by reason of the provision in C.L., Sec. 1109, “that no person shall be subject to criminal proceedings except as provided by the Hawaiian laws.” If the jurors were properly selected in this case under the statute, it would be immaterial that the same persons were summoned under an open venire also, whether valid or invalid.
Two grounds are relied on to show that the venires issued under the statute were illegal, first, that they named the persons
Whether any of the other grounds for quashing the venires relied on in argument in this court would avail, if they had been presented to the Court below at a seasonable time and made the subject of exceptions, we need not say. We can consider only the grounds presented by the challenge and motion in the circuit court.
The refusal to permit the clerk to testify in support of the challenge and motion, if error, was harmless in the view that we take of the case. The affidavits set forth the methods by which the jurors were drawn as stated by the Judge in open court and by the clerk privately. The clerk was not called as a witness to enable the defendants to ascertain how the jurors were drawn, on the theory that the defendant was entitled to know and could not ascertain except by putting the clerk on
As already stated, we hold that it was proper to pursue the •statutory method. That was clearly the intention of Congress as shown by the Organic Act. That Act (in Sec. 7) specifically repealed certain provisions of the jury laws (C.L., Secs. 1329, 1331, 1332,) relating to race and mixed juries and certain other provisions and (in Sec. 83) repealed in general terms the same ■and some other provisions, and amended by implication still other provisions, thus impliedly showing an intention to leave the rest in force as amended. It not only did that but it expressly provided (in Sec. 83) “that the laws of Hawaii relative to the judicial department, including civil and criminal procedure, except as amended by this Act,' are continued in force, subject to modification by Congress, or the legislature.” It went further and provided that “until otherwise provided by the legislature of the Territory, grand juries may be drawn in the manner provided by the Hawaiian statutes for drawing petty juries,” thus showing about as clearly as possible that “the manner provided by the Hawaiian statutes for drawing petty juries” was, “except as amended by this Act” intended to be “continued in force” until modified “by Congress, or the legislature.” The only question is whether Congress succeeded in effectuating that intention, that is, whether, in spite of that ■clearly expressed intention, Congress unwittingly repealed so much or such essential parts of the jury laws as to leave the rest as amended incapable of execution. Counsel have not attempted to point out any difficulties in the execution of those laws as so amended. We do not feel called upon to go through them at length and show negatively that there was no insur
The exceptions are overruled and the case remanded to the Circuit Court for any further proceedings that may be proper and consistent with this opinion.