Kalaeokekoi v. Kahanu

Opinion of the Court by Judd, C. J: This was an action of ejectment to recover a piece of land in Honolulu. The first exception is to the refusal of the Court to allow the record offered by the plaintiff after defendant had closed, of the proceedings in probate, in the matter of the estate of Kalaeokekoi, sen., in 1860, wherein the estate was decreed to Keaka, the mother of the plaintiff! The evidence was direct testimony for the plaintiff, and he had his opportunity of introducing it when he was putting his case to the jury. It did not rebut the new 'matter introduced by the defense, and the Court was right in refusing to admit at this stage. The second exception is to the following charge of the Court: “ That if one living on land by consent of the owner, and while so living began to hold adversely to the owner, in order to derive title by twenty years adverse possession, the owner must have notice of the beginning of his adverse holding that he so held.” In Kaaihue vs. Crabbe, 3d Haw. Rep., 774, this Court adopted the views of Washburn as laid down in his 2d volume on real estate, p. 490, as follows : Where, therefore, one enters in subserviency to the title of the real owner, there must be a clear, positive and distinct disclaimer and disavowal of the title under whicih he entered, and an assertion of an adverse right brought home to the owner in order to lay a foundation for the operation of the Statute of Limitations. ” The charge to the jury given accords with this decision and was right. The remaining exceptions are withdrawn. We now consider the motion for a new trial on the ground of the alleged incompetency of the juror, J. ‘Hamauku, by reason of his intoxication, and the alleged improper influence exerted by [483] defendant over the jury. The affidavit of Rev. H. H. Parker is to the effect that for the last few months the said juror has been in a state of mental aberration, sometimes complete and sometimes only partial, caused by excessive drinking as the defendant believes. The clerk of this Court deposes that the said juror appeared to him to be under the influence of intoxicating liquor while sitting as a juror. The affidavit of Levi Isaac, one of the jurors, is objected to under the ruling of the case of Rex vs. Kahalewai, 3 Haw. Rep., 465, which decided that jurors cannot be permitted to disclose their deliberations and proceedings while consulting together, on the ground that their communications are confidential and secret and should be kept so. But.this affidavit, so far as it describes the violent actions and extraordinary conduct of the juror Hamauku, as indicating a state of intoxication while in the jury room, is admissible without transcending the principle of Kahalewai’s case that the sanctity of their discussions is to be preserved. The Court is itself aware of the proceedings of the jury when they came into Court. The juror Hamauku declared that he was foreman and that their verdict was unanimous for the defendant. Thereupon several of the jury declared that they had not come to a conclusion and that the verdict was not unanimous, and four jurors appearing to dissent, the Court said that there was no verdict and sent them back for further deliberation, and they afterwards returned a verdict for the defendant, three dissenting. The Court is of the opinion that the juror Hamauku was not in a condition of mind to give the case the considertion which the law requires, and that the affidavits show such misconduct on his part as would vitiate the trial. He was one of the nine who found the verdict, and being incompetent by reason of intoxication there was no legal verdict. There are other affidavits submitted showing that the defendant, immediately on the verdict being rendered in his favor, invited the jury to dine at his expense. This was done [484] even while the jury were leaving the Court room. The proof is made also that the jury accepted the invitation and were treated to a dinner in a public restaurant in our town. This waB a reward given by a successful suitor to the jury, as if they had shown him a favor which was thus to be compensated. “Whether this was in pursuance of a promise to this effect made before the trial it is impossible to say. But whether it was so or not, we cannot allow this to pass unre-buked, for if this practice should be continued, juries would be led to expect such favors in every case, and a tacit understanding that certain parties if they should win would treat the jury would be equivalent to a promisé to treat them, and the jury would be tempted to let the verdict go in favor of that one of the parties litigant whose liberality or means would ensure them the most generous entertainment. Juries are to discharge their responsible duties without expectation of receiving favors of any description from successful parties. Such practices are a species of bribery, and if, when brought to the notice of the Court, they should be overlooked, they would encourage still greater corruption. S. B. Dole and J. L. Kaulukou for plaintiff. J. M. Davidson for defendant. Honolulu, May 23, 1882. The public treating of a jury by a successful litigant was an indecent and demoralizing spectacle, and tended to bring the administration of justice into disrepute. For the above reasons a new trial should be granted and it is so ordered.