People v. McQuade

The defendant was placed upon trial the second time; the jury first impaneled having disagreed. The charge against him and others had created great attention, and the publications in regard to it were numerous, including the evidence or portions of it. Many jurors were examined before those herein were declared to be competent, and some exceptions were taken to the rulings of the learned recorder, made in regard to several of the jurors rejected as well as those accepted. Two of the latter, Ottenburg and Davis, had formed opinions prior to the trial, and had read the published evidence, especially Davis,

Such is the rule established by the' ease of People v. Casey ( 96 N. Y. 115 ) and People v. Carpenter (102 Id. 238 ). It became the duty of the defendant, in other words, to shield himself from injury by challenging the jurors named peremptorily.

The other exceptions' springing from this branch of the trial are not deemed of sufficient importance to require particular consideration. It may be said, nevertheless, in pass

The subject necessarily involves a large degree of discretion, and it would be difficult, if not impossible, to put upon the record such a portraiture of the rejected juror and his mental fitness as that presented to the trial justice.

Many exceptions were taken during the tidal, and numerous are those relating to the charge of the learned recorder, and to the refusals to charge as requested. The conviction of the defendant depended upon the evidence of the witnesses Duffy and Fullgraff and their corrobation.

They were accomplices and had confessedly committed wilful and deliberate perjury. The defendant’s counsel were clearly alive to this feature of the prosecution, and with great ingenuity, zeal and ability sought to shield their client from the wrong which they feared might be accomplished through this testimony. Every available principle of evidence affecting such persons prejudicially was invoked in all the modes which devoted skill and research could suggest, and indeed this may be said of all the quasi objectionable features of the prosecution viewed from their standpoint. People gave evidence of the absence of several of the persons implicated in the offense charged against the defendant, persons who.had acted in concert with him, to accomplish the object in view, and who were absent from the State.

The objection to this evidence was general and without specification of particular ground, and such objection was . overruled.1 The admission of this evidence was proper for the purpose of showing why the people could not call these persons as witnesses, and if the attention of the court had then been asked to so limit the evidence, it is more than probable from what subsequently occurred, that this motion

This feature of the case was nevertheless changed by the direction of the learned recorder, that the counsel for the prosecution should not in his address to the jury comment upon the evidence,- and it arose in this way, as it appeared on the record.

General Tracy then summed up the case to the jury on behalf of the defendant, and Colonel Fellows on behalf of the people, and in the course of his remarks to the jury said: “ There is another circumstance which corroborates this testimony, and that is, the absence of a number of persons implicated by the story.

Q. When did they flee ; where did they go ?

Mr. Tracy. We object to that; we object to the counsel commenting upon the absence of other parties.

The Court. Leave that out.

Col. Fellows. Tour honor, it is proved.

The Court. I know that.

General Tracy. I object to—

The Court. It is objected to by the defendant, and I will rule it out.

Col. Fellows. I agree with the ruling of the court. What has been proved by that? That if these men were away they went away long before Fullgraff and Duffy told that story; that much, at least, is in evidence here.

Mr. Tracy. I except to that.

The Court. I don’t know that you can except to anything that I did not rule upon; I don’t know that there is any rule of law by which you can do it.

Col. Fellows. I will leave that here. The court thinks that it had better not be commented upon, and it is in evidence for what it is worth.

It was consequently ruled out of the case, and formed no

Even less than what was declared in this manner by the recorder was held to strike out certain evidence to which ■objection had been made in the case of Wooley v. Grand Street Railroad Co., 83 N. Y. 121 -130.

What the district attorney said in the remarks afterwards made by him did not affect or change the decision of the recorder, for the latter in no way modified the ruling which he had made excluding the evidence from the consideration of the jury, and as no further comment was made upon the evidence, the jury must have understood from what had transpired that this evidence was no longer before them.

This incident was not, however, the only one connected with the subject, for the defendant requested the learned recorder to charge:

“Fifty-third. That upon this trial the jury had no right to consider the fact that certain of the aldermen, alleged to have been in the supposed corrupt combination, are now out of the jurisdiction of this court. That such fact, if true, has no bearing upon the guilt or innocence of this defendant, and must be entirely disregarded by the jury.”

This was refused, and an exception was duly taken. The request, even if the evidence in question had been before the jury, is too broad, and for that reason must fail. The proposition that the jury had no right to consider the fact that these aldermen were out of the jurisdiction of the court, was decidedly incorrect. They had the right to consider it for the purpose expressed, but no other, and therefore that part of the request was bad in form and substance. The subsequent part of it is equally faulty, for while it correctly states that the evidence mentioned has no bearing upon the guilt or innocence of the defendant, it requires the statement to be made to the jury that it must be entirely disregarded.

If the words “ and they must be entirely disregarded by the jury” had been omitted, the request would have been less liable to the criticism now made upon it, although it

The learned recorder was also requested to charge that if the jury did not believe the evidence of Duffy and Fullgraff, they must acquit. This is, however, the. negative only of what had been already charged, namely, that if these witnesses were believed and were corroborated, the evidence would be sufficient to warrant a conviction. It was patent to all that the verdict of guilty, if pronounced, must rest upon the truthfulness of the stories told by these witnesses.

It was not contended or assumed by counsel or court, that the defendant could be convicted, striking their testimony from the case, or discarding or discrediting it. Their evi

We must assume that juries possess some intelligence personally. I have great confidence in that tribunal, and when told that an affirmative result depends upon their belief of witnesses named, cannot fail to understand that disbelief must work out the converse and negative conclusion.

The substance of the request was put in'another form as follows : “ Seventeenth. That if the jury, upon a full consideration of the whole case, do not believe that the witnesses, Fullgraff and Duffy, are worthy of credit, it is their duty to reject their evidence and acquit the defendant.”

The Court. 1 refuse to charge other than I have charged, but the same observations apply to it as to the other request.

The learned recorder was also requested to charge as follows, and declined to do so except as charged.

“ Twenty-first. That if the jury believed that the evidence introduced by the prosecution and relied upon to convict is of doubtful credibility, the previous good character of th¿ defendant, clearly established by uncontradicted evidence, may, in itself, be sufficient to create a reasonsble doubt of the defendant’s guilt, entitling him to an acquittal.”

I refuse, except as I have charged.

What he said to the jury on the subject of good charac- • ter was, the defendant has introduced evidence of, and it is conceded in this case by the people that he is a man who has heretofore borne a good character. In all criminal cases evidence of good character is to be considered and weighed, and given its proper effect by a jury. While evidence of a good character of itself does not tend to prove that a man is not guilty of an offense, it is to be taken into consideration, and given all the weight which a jury believe it is justly and properly entitled to; and in a case where the evidence of good character has not been introduced, and where a jury may be satisfied of the guilt of the' person charged, evidence of good character, if introduced, will of itself sometimes raise that presumption of reasonable doubt to the benefit of which the defendant is entitled. But, in weighing evidence of good character, a jury should • be careful to remember that all men at some time in their lives have been men of good character, and that men of previous good character have been known to commit some of the gravest crimes known to the law. However,- the law, in its humanity, says that that evidence is to be received and considered by the jury, and given all the weight that they think is justly and properly entitled to, and no more. It cannot be said that the remarks of the learned recorder embraced the exact proposition contained in the request, but they did nevertheless present all the favorable elements created by proof of good, character. He said:

“ In all criminal cases, evidence of good character was to be considered and weighed, and given its proper effect by a jury and continued, saying : “ That such evidence would of itself sometimes raise a presumption of reasonable doubt, even when the jury were satisfied of the guilt of the person charged.”

He concluded by saying further, as we have seen, that “ the law, in its humanity, says that the evidence is to be received and considered by the jury, and given all the

The other observations though correct in substance might have been omitted from the charge. They are not exceptionable, however, inasmuch as the effect of proof of good character was distinctly left to the jury, and the statement of the learned recorder as to forfeiture of character by crime, embraced nothing more than is present to the human mind as the result of observation and experience.

There is necessarily an end to good character when the person who bears it commits a crime, but good reputation is inconsistent with the probability of transgression and hence it may be invoked to overcome facts and circumstances suggestive of guilt. This proposition was stated to the jury as we have seen when the learned recorder said, proof of good character might create a doubt even where the jury were satisfied of the guilt of the person accused. The objection to what was said seems to concentrate in the form in which it was expressed, and not in the substance. Good character always is the ally of the accused, protecting him when endangered by well founded suspicions, indeed it may be the only defense which he can successfully interpose against accusation, and it should not be lightly treated but given its full effect and without comment, either designed or calculated to weaken its force.

The rule which made it important and valuable was formulated by judges of experience and observation, who well knew that good character prevailed until crime was committed, and that grave crimes were perpetrated by men of previous stalwart reputations^ and it has become a maxim almost sacred in the law. If the full measure of its benefit be not given by proper expression to the jury, the accused is wronged and should have redress, particularly where the proof against him is of perjured witnesses—perjured on their own confessions.

These observations are indulged in lest it should be thought the importance of good character as a factor in the

It must also be borne in mind that under the provisions of the Code of Criminal Procedure, § 542, after hearing an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. Now an error not of substance, and which gives rise only to technical, and, therefore, harmless objections, must be disregarded. The effect of the section is to dissipate. rules of review which formerly prevailed, and which sometimes led to new trials, even when the error was technical. These are no longer useful. The merit of exceptions in the spirit of the Code must be proclaimed and adhered to (People v. Sharp, supra); and they are available only where they affect the substantial rights of the party (People v. Dimick, 107 N. Y. 13 , 34,35).

The examination of this appeal has not revealed the presence of such exceptions or disclosed any ground requiring us to grant a new trial in view of the rules established by the provisions of the Code, supra, and the cases cited.

The judgment appealed from must, therefore, be affirmed. Ordered accordingly.

Van Brunt, P. J., and Daniels, J., concur.

I. The defendant’s rights were violated in the selection of the jury (Wynehamer v. People, 13 N. Y. 378 ; Stokes v. People, 53 Id. 164,171; Hildreth v. City of Troy, 101 Id. 234).

II. The court erred in its construction of section 385 of the Code of Criminal Procedure, which requires that the people shall first challenge (Com. v. Rogers, 7 Met. [Mass.] 500; U. S. v. Hanway, 2 Wall. Jr. 139 , 143 ; State v. Potter, 18 Conn. 166 ; State v. Cameron, 2 Chandler's Rep. [Wis.] 172).

III. Three of the jurors who served on the jury, were all disqualified by reason of having formed and expressed an opinion touching the guilt or innocence of the accused. They were not impartial (People v. Casey, 96 N. Y. 115 -122; Balbo v. People, 80 Id. 484-494; Greenfield v. People, 74 Id. 277; People v. Bodine, 1 Den. 281 ; People v. Carpenter, 102 N. Y. 238 , 244; Freeman v. People, 4 Den. 1 , 31).

IV. The court erred in permitting the district attorney to prove that Alderman Sayles, a member of the board, and one of the thirteen who constituted the alleged “ Combine ” testified to by Fullgraif and Duffy, had been indicted by the grand jury for bribery.

V. The court erred in admitting the evidence to show that certain of the aldermen alleged to have been of the c< Combine,” of thirteen, were, at the time of the trial, and for some time previous thereto-had been, absent from the jurisdiction of the court, and residing in Canada (People v. Sharp, 107 N. Y. 464 ; People v. Davis, 56 Id. 95; N. Y. Guaranty & Indemnity Co. v. Gleason, 78 Id. 503; Anderson v. Railroad Co., 54 Id. 334; Hutchins v. Hutchins, 98 Id. 56; Insurance Co. v. Mosley, 8 Wall. 397 ; Newton v. State, 21 Fla. 53 ; Erben v. Lorillard, 19 N. Y. 299 ;

From this" decision the defendant appealed, to the court of appeals.

VI. The court erred in admitting a consultation and conversation had between the witness Fullgraff and DeLacy just before Fullgraff took the stand as a witness before the senate committee.

VII. The court erred in charging the jury that evidence of good character of itself does not tend to prove that a man is not guilty of an offense (People v. Lamb, 2 Keyes, 378 ;* Remsen v. People, 43 N. Y. 6 ; People v. Wileman, 44 Hun, 187 ).

McKenzie Semple, assistant district attorney (John R. Fellows, district attorney), for the respondent.

I. Even if the trial court erred in excluding any of the proposed jurors, the ruling is one to which exception does not lie. All that a defendant has a right to ask is a jury composed of competent, fair and impartial citizens; and his constitutional right to demand that the jury shall be composed of fair, impartial and competent citizens is not impaired by the exclusion of jurors, though never so impartial, as long as impartial jurors remain to try the case (Thompson and Merriam on Juries, 228, 229 ; Grissom v. State, 4 Tex. App. 376 , 378).

II. The court did not err in overruling any of the defendant’s several challenges to the several jurors who participated in the verdict (People v. Buddensieck, 103 N. Y. 487 ; People v. Carpenter, 103 Id. 238).

III. Even if the court did err in overruling any of the defendant’s challenges, or in admitting or excluding evidence upon the trial of any of the challenges to any of the jurors who participated in the verdict, such error, if any, is not available, inasmuch as the defendant did not exhaust his peremptory challenges, and had four remaining when the jury was sworn (People Carpenter, 102 N. Y. 238 ).

V. The ruling of the court in admitting evidence as to the absence from the jurisdiction of Keenan, Maloney, Dempsey, DeLacey, and Sayles, does not constitute such error as would justify a reversal (People v. Sharp, 107 N. Y. 427 ).

VI. The court did not err in admitting evidence of the conversation between Eulgraff and DeLacey, just before Eulgraff took the stand as a witness before the senate committee (People v. O’Neil, 109 N. Y. 251 ).

VII. The court did not err in its instructions to the jury, touching the weight and effect to be given to evidence of previous good character, as claimed by the defendant in his ninth point (Stover v. People, 56 N. Y. 315 , 319).

VIII. The other assignments of error in this case are within the principle of the decision in People v. Dimick, 107 N. Y. 13 , 34, in which the court said : “ Section 542 of the Code of Criminal Procedure provides that ‘ after hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties and section 684 provides ‘ that neither a departure from the form or mode prescribed by this code in respect to any pleadings or proceedings, nor any error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tends to his prejudice, in respect to a substantial right.’ These are mandates of the law-making power, and the court should, with reason and discretion, give them full force and effect.”

This is one of the series of cases arising on indictments for bribery in connection with-the grant of

The assignments of error are to be considered and! decided in view of section 542 of the Code of Criminal Procedure, which requires the appellate court on an appeal in a criminal case to “ give judgment without regard to technical errors or defects which do not affect the substantial rights of the parties.”

The questions in respect to the impaneling of the jury will first be considered.

Each juror drawn, as he was called, was examined first by the prosecution and then by the defense as to his qualifications as a juror, no formal challenge being interposed by either party, and unless set aside by the court for bias or other cause, took his seat in the box, but without being then sworn as a juror in the case. Neither party exercised the right of peremptory challenge until after the box was full. The people then challenged peremptorily six of the twelve jurors in the box, and others were selected to take their place, and the district attorney then declared himself content with the jury. The counsel for the defense thereupon, before the defendant had exercised the right of peremptory challenge at all, claimed and insisted that the prosecution was bound, if it desired to challenge peremptorily any of the jurors then in the box, to exercise the right at that time, and before the defendant exercised his right. The court, refused at that time to rule upon the point, and the defend

The ruling was plainly erroneous. The subject is regulated by the statute. Section 385 of the Code of Criminal Procedure, as amended in 1882, declares that “Challenges to an individual juror must be taken first by the people, and then by the defendant.” The next section prescribes the order in which the challenges shall be taken, first, challenges for cause, and next peremptory challenges. The language of section 385 precludes argument.

The learned judge in overruling the defendant’s contention acted doubtless under a misapprehension of the statu

By the ancient common law it seems that the crown had the right of peremptory challenge, but this was changed by statute 33 Ed. I., St. 4, which took away the right and required the King to assign cause of challenge in all cases. This statute was evaded to some extent by the construction of the courts, which permitted the prosecution to set aside a juror for the time being without assigning cause until after the whole panel was gone through with, and it appeared that a full jury could not be obtained without the juror challenged (2 Haw. Ch. 43, § 3; Bish. Crim. Pro. § 937, et seq.). In this State a limited right of peremptory challenge was given to the people on trials of indictments for murder and other felonies, by chap. 332 of the Laws of 1858, five on trials of indictment for murder and felonies punishable with imprisonment for more than ten years, and in other cases three. But the defendant was allowed twenty peremptory challenges in case of an indictment for murder or felony punishable with ten years or more imprisonment (2 Rev. Stat. 734, § 97). By chapter 427 of the Laws of 1873 it was provided that on the trial of all felonies or misdemeanors the prosecution should be entitled to the same number of peremptory challenges as are given to the defendant. It will be observed that from the earliest times the right of peremptory challenge was the especial privilege

In civil cases where property is sought to be taken or title divested under statutory proceedings, it is the familiar and. settled doctrine that the statute must be strictly followed, and every provision having the least semblance-of benefit to the owner must be complied with, or else the-proceeding is void. The same principle applies with even greater force where the proceeding may affect life or liberty. It is plain, we think, that the statute prescribing-the order of peremptory challenge in criminal cases—that the right should be first exercised by the people—was-intended for the benefit of the defendant. The prosecution being first required to exhaust its peremptory challenges relieves the defendant from using his challenges in. cases where the juror challenged by the prosecution was also-unacceptable to the defendant, and thereby preserves his

Three persons who served- on the jury, viz.Henry Ottenburg, George K. Davis and John J. Boss, were each examined preliminarily on oath as to their qualifications as jurors, and were declared competent by the court. The defendant excepted to the ruling, and it is insisted that

The general term, in its opinion, in considering the exception taken to the ruling of the court in respect to these jurors, declared that the jurors Ottenburg and Davis, upon their own statements, were clearly incompetent to sit as jurors under the decision in the case of People v. Greenfield ( 74 N. Y. 277 ), and “ should have been rejected.” But the opinion goes on to state that the “ error is not fatal, for the reason that the defendant had, when the jury were about to be sworn, four peremptory challenges, and he could have protected himself by the use of these from the apprehended injustice of the acceptance of the objectionable jurors.”

Before proceeding to the particular consideration of the exceptions, the overruling of the exceptions to these jurors, and to avoid misconstruction of our conclusion, it is proper to consider what power is vested in an appellate court by the present Code of Criminal Procedure in reversing the decision of a trial court overruling a challenge for actual bias. Section 376, subd. 2, of the Code, defines actual bias to consist in the existence of “astate of mind on the part of the juror, . . . . which satisfies the court, in the exercise of a sound discretion, that such juror cannot try the issue impartially and without prejudice to the substantial rights-of the party challenging.” It is substantially what was formerly known as a challenge to the polls for favor, the question being as to the indifferency of the juror as matter of fact as distinguished from a challenge for principal cause, where the law, upon the challenge being found to be true, adjudged the juror disqualified. It was well settled under the former practice, prior to the act, chapter 427 of the Laws of 1873, that on the trial of a challenge to the polls for favor the decision of the tilers or of the court (where the court was substituted as the triers) on the question of indifferency, was final and not

These decisions would be authoritative as to our 3'ight in the present case to review the determination of the trial judge on the merits in the case of the jurors Ottenburg, Davis and Boss, if the statute of 1873 is still in force, and to reverse the conviction if we reach the conclusion that the decision of the trial judge that the juroi's wei’e free from actual bias, although not eiToneous as matter of law, was nevertheless erroneous in fact, and that in the exercise of a wise discretion and in justice to the defendant these jui’ors ought to have been set aside. But section 455 of the Code of Criminal Procedure explicitly confines exceptions which may be taken by a defendant on the trial of indictments to-exceptions made to the decision of the court on matter of law, “ and not otherwise,” in the following cases : ■

(1.) In disallowing a challenge to the panel of the jury.

(2.) In admitting or rejecting testimony on the trial of & challenge for actual bias to any juror who participated, or in allowing or disallowing such challenge.

(3.) In admitting or rejecting witnesses or testimony, or in deciding any question of law, not a matter of discretion, or in charging the jury.

The question raised on the exceptions to the decisions of the court in overruling the challenges of the jurors Orenburg, Davis and Boss, turns, therefore, upon the point whether the evidence discloses a condition of mind on their part which as matter of law rendered them incompetent jurors for actual bias. We fully concur with the opinion of the general term that these persons ought not to have been permitted to sit as jurors, and we are further of opinion that some of them at least were legally incompetent by reason of actual bias, disclosed on the face of their own testimony.

The juror Ottenburg stated that he had read and talked of the case and had formed an opinion touching the guilt or innocence of the defendant prior to his first trial; that he had read much of the evidence on that trial and that his opinion remained the same; that it amounted to a conviction ; that what he had read .of the proceedings of the board of aldermen in respect to granting the franchise to the Broadway Surface Bailroad had created a strong and decided prejudice against those members who voted for it. Being asked, “ And that prejudice would go with you in the jury box, would it not ?” answered, “ If I am sworn I would take it with me in the jury box, and it would remain with me until the evidence in the case was sufficient, in my opinion, to remove that prejudice ; and whether it would be suffi

The juror Davis stated, on his examination by the defendant’s counsel, that he had both formed and expressed .an opinion in the case—a decided opinion.

Q. And would it remain with you and influence your action as a jijror until there had been evidence sufficient introduced to remove or change it ?. A. Well, I don’t know how I would answer that. If the testimony was given as before, I think, my opinion would be the same.

Q. Then I infer that you have read something of all the evidence given on the former trial ? A. Very carefully.

Q. The whole of it? A. Ves, sir ; substantially so.

Q. And upon that you formed your opinion ? A. I did.

Q. And if the evidence proved to be correctly reported —proved to, have been correctly reported—then your opinion as a juror will be the opinion yon now entertain? A. If the sworn testimony is given, yes, sir ; and unless there was testimony introduced on one side or the other on this trial sufficient to change the opinion that I formed from the testimony taken on the other trial, I would render my verdict according to my present opinion.

Q. And would that opinion influence you in the recep

Q. You think not? A. I think perhaps the evidence might appear different to me when I heard it directly given, than when I read it.

Q. You think your present opinion would not affect the weight or influence that you might give to the evidence in this case as it was delivered from the witness stand ? A. I think it would not. I might be unconsciously influenced ; I do not know; I think it would not influence.

Q. Do you suppose that the evidence as delivered by the witness on .this trial should leave your mind somewhat in doubt as to the verdict at which you should arrive; would your present opinion influence you in that event one way or the other ? A.. I do not know how to answer that question ; if it left my mind in doubt I should not want to vote either way.

Q. Well, suppose you should find yourself in that position on this trial, should your present opinion influence or guide your action at all ? A. It might.

Q. Do you believe it would in that event? A. Well, I really could not say what effect it would have.

Q. Are you in doubt as to what effect it would have ?' A. I am, and am not able to say what effect it would have in that event.

The juror further stated : I have discussed it (the case) with a great many people, but not always expressed an opinion, but I have expressed an opinion several times.

Q. How many different times and on how many different occasions should you say you had given expression to your opinion ? A. Well, half a dozen times.

Q. And to half a dozen persons ? A. Well, there may have been sometimes several persons present when the

The juror Boss had read more or less of the testimony on the former trial, had formed an opinion which he then entertained, and his condition of mind in respect to the case was very similar to that disclosed to the jurors Ottenburg and Davis.

It is very clear that prior to the Act of 1872, these jurors would have been excluded on a challenge for principal cause. So, also, under the Act of 1873, according to the case of People v. Greenfield {supra), this court would have reversed the conviction for the error of the trial court in its finding on the fact in respect to actual bias. There has been no change in the fundamental rule that an accused person is entitled to be tried by a fair and impartial jury. Formerly the fact that a juror had formed and expressed an opinion touching the guilt or innocence of a person accused of crime, was in law a disqualification, and although he expressed an opinion that he could hear and decide the ease upon the evidence produced, this did not render him competent. The statute of 1872 changed the pre-existing rule by enacting in substance that an existing opinion or inference as to the guilt or innocence of an accused person should not be sufficient ground of challenge to a juror, if he could declare on oath his belief that such opinion or inference would not influence his verdict, and that he could render an impartial verdict according to the evidence, and the court should be satisfied that the juror did not entertain such a present opinion or impression as would influence his verdict. The substance of this provision in the Act of 1872 is incorporated in section 376 of the Code of Criminal Procedure. Now, as formerly, an existing opinion by a person called as a juror of the guilt or innocence of a defendant charged

It cannot, we think, be justly claimed that the jurors Ottenburg and Davis, in view of their testimony as a whole, made the declaration required by the statute. They had an opinion in the case which was a conviction. It was founded upon the most authentic knowledge of the criminal facts, viz.: the testimony on the former trial, which was reproduced on the trial in which they participated. Fairly construed their declaration of their belief that they could render an impartial verdict, was qualified by a doubt and was not sure and absolute. The defendant was at least entitled to a certain and unequivocal declaration of their belief that they could decide the case uninfluenced by their previous opinions, and this their evidence taken as a whole did not • contain, and as matter of law they should have been set aside.

The answer of the General Term to this assignment of error, that when the jury was sworn the defendant had four peremptory challenges unused, which he might have employed in excluding the three jurors in question, was not sufficient. This precise question was considered and determined by the old supreme court in People v. Bodine (supra) and again in Freeman v. People ( 4 Den. 1 ,31), both notable eases in this State. In People v. Bodine the prisoner had challenged but thirteen jurors peremptorily, although she might have challenged twenty. It was argued that as she might

This doctrine, so fully and carefully enunciated in this case, was re-affirmed in People v. Bodine. The decision in People v. Bodine, made in 1845, has been regarded as the settled law of this State upon this question from that time, and the'casnal observations of the court in People v. Casey

The defendant, by the use of three of his remaining challenges, might have excluded the three jurors from the box. This would have left him but one peremptory challenge to use in filling their places. He could not know that jurors less objectionable would be selected, nor that the district attorney might not then use his remaining peremptory challenges, as he had done before, in rejecting jurors in the jury box, with whom both parties had declared themselves content. The defendant was not compelled to place himself in this dilemma, but was entitled to rely upon his exception to the overruling of his challenges for bias.

Exceptions were taken to other rulings on the impaneling of the jury, only one of which will be noticed.

One Platt was called as a juror, and the district attorney proceeded to examine him as to his qualifications. He was asked if he knew any of the lawyers engaged in the case, and he answered that he knew Mr. Hewcombe, one of the counsel for the defendant. The record then proceeds as follows:

Q. Had you any business with him % A. Very little.

Q. Has he been counsel for you, Mr. Platt ? A. He has not in any case; just for advice.

Mr. Martine. I submit the challenge.

The Court. I think he had better be excused. He says he has advised with Mr. Hewcombe. You (Mr. H.) have so many clients you cannot recollect them all.

The Witness. Well, it is a kind of roundabout matter.

Mr. Neweorribe. I don’t know that I was ever counsel for Mr. Platt.

The Court. He says you gave him advice.

The Witness. Hot in any business way, only I was called there.

The Court. I think your acquaintance with Mr. Hewcombe will disqualify you from serving in this case.

The juror was excluded because he was acquainted with one of the counsel for the defendant, and had advised with him on some occasion not connected with the case on trial. We know of no such cause of challenge. The Code defines certain relations between a juror and a party as ground of challenge for implied bias, among which is the relation of •client and attorney, and confines the causes of challenge for implied bias to the enumerated cases, and the cause for which this juror was excluded is not among them {Code, -§ 377). The Code also defines actual bias as the existence of a state of mind on the part of the juror in reference to the case or to either party, as satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging (§ 376), and declares that a challenge for actual bias cannot- be taken for any other cause (§ 378).

We have found no precedent for excluding a juror upon the ground assigned by the court, and in reason it seems •quite insufficient, nor is it warranted by the statute.

But it is insisted on behalf of the People, that even if the trial court erred in excluding this juror, as he did not •sit, the ruling is one to which an exception did not lie. This contention is founded on a misconstruction of the second subdivision of section 455 of the Code of Criminal Procedure, which permits an exception to be taken “in admitting or rejecting testimony on the trial of a challenge for actual bias, to any juror who participated in t.he'verdict, or in allowing or disallowing such challenge.” This subdivision is construed by the counsel for the People, as if the words “ who participated in the verdict ” followed instead of preceded the last clause, thereby limiting the right of exception in all cases to rulings as to jurors who participated in the verdict. This construction is manifestly erroneous. The last clause permits an exception as well when the challenge is allowed as when it is disallowed, or, in other words, when the challenge is sustained, as when it

Construing both clauses in the subdivision together, it. does not permit an exception to a ruling in admitting or rejecting testimony on the trial of a challenge, except where the challenge is overruled and the juror participates-in the verdict, but does permit an exception to an erroneous-rejection of a juror on the facts appearing in the case. In other words, if the juror, on the facts proved, was a competent and legal juror, an exception lies to his rejection.

It is further insisted that admitting that an exception-lies, it is not reviewable on appeal, for the reason that section 51.7, authorizing an appeal from a judgment of conviction, provides that upon the appeal, “ any decision of tliecourt in an intermediate order or proceeding forming part of the judgment roll as prescribed in section 485, may be reviewed,” and that by section 485 it is provided that the-judgment roll shall contain, among other things, “ a copy of the minutes of a challenge to a juror participating in the verdict.”

6

The argument is that as only the proceedings on a challenge to a juror participating in the verdict are required to-be incorporated with the judgment roll, the intention of the statute was to confine the review to such cases only. But. section 485 also provides that the judgment roll shall contain the “bill of exceptions, if there be one,” and all exceptions may be incorporated in the bill of exceptions- (§ 456).

Under the former practice the proceedings on challenges-for principal cause were entered in the record, but it was-otherwise as to proceedings on challenges to the polls for favor, although questions of law arising on such -challenges-could be reviewed on bill of exceptions (Beardsley, J., in People v. Bodine, supra). Under section 485 of the Code, proceedings on challenges to jurors who participated

The intentional omission of the sheriff to summon one or more of the jurors drawn to serve at a court, is by the Code made a ground of challenge to the whole panel (§ 362). This section recognizes the principle that the legal right of a defendant in the selection of a jury may be violated, although he may not be able to show that any of the jurors by whom he was tried were not fair or impartial. This court had occasion to consider this general subject in Hildreth v. City of Troy ( 101 N. Y. 234 ), and we adhere to the views then expressed. But while we are of opinion that the court in excluding juror Platt committed a legal error, it is not necessary to decide that this error alone would require a reversal of the conviction. It may be that the erroneous exclusion of a single juror from the panel by mistake or inadvertence, where it could be fairly inferred that no injury resulted to the defendant, might be disregarded under section 542 of the Criminal Code. We do not pass upon this question. But we have deemed it proper to*

We think errors were committed in the admission of evidence.

(1.) The prosecution was permitted, against the objection and exception of the defendant, to prove by the clerk of the court that Alderman Sayles, a member of the board of aldermen, and one of the thirteen who constituted the alleged “ Combine,” had been indicted for bribery and had not been brought to trial; and also that Keenan, Dempsey, DeLacy and Maloney, persons also implicated in the bribery, were, at the time of the trial and for some, time previous thereto had been, absent from the jurisdiction of the court, and were residing in Canada,. The proof of the latter fact preceded in order of time the proof as to the indictment against Alderman Sayles, and was objected to specifically on the ground that the fact that the persons mentioned had departed from the jurisdiction of the court was incompetent against the defendant. The district attorney openly avowed on the examination of the 'clerk, upon his offer to prove by him the specific reasons why Alderman Sayles had not been brought to trial, that the proof was offered on the same ground that he had offered the proof that had been admitted, of the present residence of Keenan and others, viz.: “as corroborative evidence of the story of Fulgraff and Duffy.” It is perfectly plain from the record, that the evidezzee in respect to the indictment of Alderman Sayles, and the absence of Keenan and others from the jurisdiction, was offered and received for the purpose indicated by the district attorney. It was cleaidy incompetent for this or any other purpose. Similar evidence was given on ■the trial of Sharp ( 107 N. Y. 427 , 464) and was held ineom:petent, although the avowed purpose for which it was then ^offered and received was to account foz; the persons named

(2). The evidence that DeLacy just before Fulgraff’s examination before the senate committee in 1886, had a ■consultation with the latter and said to him, “Well, you don’t know anything, and when you get before the committee, you tell them you don’t know anything,” was also erroneously admitted. The fact that the witness Fnlgraff consulted with DeLacy and had an understanding with him as to how he should testify before the senate committee, •could not legally affect the defendant. Tet the evidence tended in the minds of the jury to confirm the original association and concert testified to by the witness and to give credit to his story, although wholly incompetent for that purpose. The examination before the senate committee occurred two years after the conspiracy had been

There were many exceptions to the charge and to-refusals to charge, which it is unnecessary to consider, as-the errors pointed out require a reversal of the judgment. Some of these exceptions present serious questions, but we-are. not satisfied that the exceptions not considered are well founded, and we pass them without special examination.

For the reasons stated the judgment should be reversed,, and a new trial granted.

Earl, Danforth and Finch, JJ., concur; Huger, Ch. J,,. concurs in the result.

dissents from that portion of the opinion treating of the order in which peremptory challenges should be made, on the ground that the statute is directory only and- not matter of exception upon which to grant a new trial. Also from that portion of the rejection of a competent juror, as being error upon which án exception might be taken. He agrees upon the other matters discussed in the opinion.

dissents from.the grounds of the conclusion in Judge Andrew’s opinion, and votes for reversal and a new trial on the ground that it was error to charge the jury that evidence of good character of itself did not tend to-prove that a man is not guilty of an offense. This error was not cured by anything in the rest of the charge, and. being substantial in its nature, the defendant is entitled to a. new trial.

Judgment reversed and new trial granted.

In a note on this subject in 6 Abb. N. C. 1 , the law, in its condition previous to the Code of Criminal Procedure, and the consequent policy of counsel in challenging jurors, were fully stated.

The case in the text passes authoritatively on the questions intro-duced by the Code as amended in 1882.

It settles a rule as to peremptory challenges which, however unexpected to the profession, seems in accordance with the amendment of 1882, and one which if I am not mistaken will without injustice put an end to the unseemly and unwholesome practice which has resulted ■from efforts to get an unobjectionable jury in causes of great public interest, by prolonged and alternate challenging, approval, and rer challenging.

I. The order in which to challenge.

At common law the order in which counsel shall be allowed to challenge is a matter in the discretion of the court. The right to challenge cannot be taken away. But the court may direct as to. the ■time when it is to be exercised.

.In the absence of any direction, it continues up to the time the juror is sworn; that is to say, up to the time when the juror sought to be challenged, lays his hand upon the book by direction of the court or clerk. If the jurors are not sworn until the box is full of apparently competent jurors, and then all are to be sworn together, or in groups, the right continues until then. If the court direct each juror to be sworn when found competent, the right is cut off as to each when he commences to take the oath, and in such case a direction after the box is full, to administer a second oath, does not renew the right.

But the court may in its discretion, unless controlled by statute, set a different limit to this right. It' may, as Chief Justice Shaw did on the trial of Prof. Webster, direct that a peremptory challenge be interposed, if at all, before challenge for cause. Or it may, as was held in People v. Damon, 13 Wend. 351 , and Trial of Tweed, 13 Abb. Pr. N. S. 371,71., for good reason, allow a challenge to be interposed after oath, this being but an application of the principle, that independent of the right ■of challenge, the court has a power and a duty to see that an impartial jury be obtained, and in the exercise of that power may discharge a juror, and allow his place to be supplied at any time before any evidence has been taken. If done after evidence has been taken, the taking of evidence must be commenced anew after the substituted juror is in his place.

The New York statute, which is construed in the text, seems to

The N. Y. Code of Criminal Procedure, as originally enacted, L. 1881, c. 504, prescribed that “challenges to an individual juror, except those which arg peremptory, must be taken, first by the defendant, and then by the people. § 385.

In 1882, the section was amended by omitting the words in italics, and thus bringing peremptory challenges under the rule which requires-the prosecution to challenge first.

I am not aware, however, that it has been held that after the accused has challenged for cause, and the challenge has been overruled, it is error to allow the prosecution to challenge the same juror for cause.

The practice is to allow either party to interrogate; and thereafter either to interpose a challenge.

The Code of Criminal Procedure^ seems also intended to require challenges to be taken, if at all, in an order dependent upon their nature. Section 386 does not expressly say this, but the catch-word or marginal note is “ order of challenges.”

The text of the section, is as follows:

“ § 886. Challenges of either party, must be taken :

“1. To the panel ; ,

“ 2. To an individual juror, for a general disqualification;

“ 3. To an individual juror, for implied bias ;

“4. To an individual juror, for actual bias ;

“5. Peremptory.”

The last subdivision was added by the amendment of 1882, when the words “ except those which are peremptory ” were omitted from the section requiring the people to challenge before the accused.

The principle of the decision in the text seems to be that the accused has a right in respect to each juror, to have the prosecution exercise its-right of election whether or not to challenge peremptorily before the-accused is called on either to exercise that right in respect to that juror, or to manifest his intention even indirectly, by tacitly assenting to his occupying a place as one of a full box.

The New York Statute, Code Grim. Pro. § 371, provides that “a challenge must be taken when the juror appears, and before he is sworn.” A practice of postponing the administration of the oath to the jurors, until the number of twelve was full, after challenging for

When we look at the grounds affecting the policy of the law, several considerations are worthy of notice.

1. The law now provides a public list of persons liable to be called as jurors, and makes it the duty of the parties to avail themselves of this means of information so far as this : that the law refuses to grant a new trial on the ground of ignorance of facts'which might have been ascertained by so doing.

2. Jurors are not under the necessary safeguards against being approached, until sworn after challenging ended : and to allow either party unnecessarily to postpone the exercise of the right of peremptory challenge, especially when adjournments intervene, is to give opportunity, not only to ascertain what juror may be satisfactory to the adversary, but also to approach and influence a juror after his examination has been closed, and before he is under oath, and the usual safeguards. This latter danger has already been recognized by the courts even in civil cases.

It cannot be contended that the decision in the text is authority for holding that all the peremptory challenges of the prosecution allowable to it, or claimed by it, must be exhausted before any preemptory challenges should be interposed by the defendant. Although some may think this is suggested by one of the reasons assigned in the opinion of'Anubews, J., for the ruling, namely, that the prosecution by delaying to challenge peremptorily until after the accused had challenged peremptorily, might get information as to what jurors are satisfactory to the accused, and then challenge them peremptorily. But the other reason, and the main reason, for the ruling, namely, the statutory requirement that challenges to an individual juror must be taken first by the people, and then by the defendant, does not seem to support such an interpretation of the decision because, first, the language of the statute is distributive, mentioning “ challenges to an individual juror,” not challenges to jurors ; and, second, it is impossible to interpret the statute in such a way in reference to challenges for cause, these being made, first, by the people, and then by the accused, in reference to each individual juror. The natural interpretation of the statute seems to be, that when the time for challenging for cause, or bias, etc., arrives, the prosecution may be required to make its election whether to challenge or not, before the accused is called on to do so, and in the

Certainly it could not be held, nor. does the decision in the text purport to hold, that the mere fact that the accused has challenged one juror peremptorily, precludes the prosecution from exercising the right of peremptory challenge as to another juror called to fill the vacancy. The court in stating the facts to which its rulings applied, lays emphasis on the circumstance that the district attorney" after peremptorily challenging some, and after their phaces being filled, declared himself content with all, and subsequently claimed to challenge peremptorily jurors who were originally in the box, and with whom he had declared himself content.

■ The main question which will probably arise in the application of this ruling, will be as to the power of the court to require the accused to elect whether to challenge peremptorily or not a particular juror, immediately after the district attorney has elected not to challenge him peremptorily, or whether the rule is to be so applied as to enable the accused to postpone his election, thus giving him an opportunity to ascertain what jurors are satisfactory to the prosecution, and finally challenge them.

The case in the text establishes the principle that in respect to peremptory challenges the statute provision is mandatory, that the accused shall not be required to manifest, even indirectly, whether he elects to challenge a juror peremptorily or not, until the prosecution have manifested their election.

And the decision is put in part upon the ground that justice to the accused confirms this construction, because otherwise the prosecution may delay, and finally be induced to challenge peremptorily by information or inference that the juror unchallenged by the accused is satisfactory to the accused.

There can be no doubt that the decision will tend, to shorten much the unseemly prolongation of these contests. But it must not be overlooked, that neither the decision nor the statute impair the right of the accused to postpone his exercise of peremptory challenge until the court directs the oath to be administered, nor the power of the court, in its discretion to postpone that ceremony until the full number of apparently satisfactory jurors is obtained. So that, if this be done, the accused may still have the opportunity to take advantage of information or inference that a juror if unchallenged by the prosecution, is satisfactory to the prosecution, to exclude him, precisely like that which the decision very properly takes away from the other side.

The complete remedy for this objectionable practice would seem to

The discretionary power of the court to direct each juror to be -sworn as soon as he has passed challenging, is not questioned by this ■decision. The fairness of requiring the election of the accused to ■follow immediately that of the prosecution is obvious, and the reason•ableness of immediately administering the oath to a juror not rejected is enhanced by the opportunity for disqualifying influences to intervene during delay.

Nor does such a method foreclose any of the powers of the court, ■for even after oath administered, the court may set aside a juror for ■cause, at any time before evidence taken.

This it may do by allowing a party to interrogate a sworn juror anew, and on finding cause, interpose a challenge for cause (People v. Damon, 13 Wend. 861 , or by discharging the juror without making ■the grounds of objection public, as in People v. Tweed, 13 Abb. Pr. N. S. 371, note.

31. Error in overruling a challenge for cause is not cured by the fact that a peremptory challenge remained finally unused.

On this point the case in the text overrules dicta in People v. Carpenter, 102 N. Y. 238 .

And it is contrary to the settled rule of the supreme court of the United States.

In the Anarchists’ case, the supreme court of the United States hold: (1.) That errors committed in the lower court in overruling ■defendants’ challenges for cause to jurors, are not grounds for reversal, unless it be shown that a partial juror was forced upon them, and put upon the case, after they had 'exhausted their peremptory challenges.

(2.) The issue raised upon a challenge for cause to a juror in a criminal case, on the ground that he had formed and expressed an opinion as to the issues to be tried, is one of mixed law and fact ; and the finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless it manifestly appears that upon the evidence, the trial court ought to have found that the juror had formed such an opinion, that he could notin law be deemed impartial.

In Hopt v. Utah, 120 U. S. 430 , it was decided by that court that when ‘ ‘ a challenge by a defendant in a criminal action to a juror for bias,

S. P. in civil cases, Burt v. Panjaud, 99 U. S. 180 .

The following cases in other jurisdictions favor the rule contrary to the text, that error in overruling challenges for cause is unavailable to the accused on appeal, unless he has exhausted his peremptory challenges: U. S. Courts—United States v. Neverson, 1 Mack. (U. S.) 152. Arkansas—Wright v. State, 35 Ark. 639 . California—People v. McGungill, 41 Cal. 429 . Colorado—Minich v. People, 8 Col. 440 ; s. c., 8 West Coast Rep. 580 . Connecticut—State v. Smith, 49 Conn. 376 . Illinois—Collins v. People, 103 Ill. 21 . Iowa—State v. George, 62 Iowa, 682 ; s. c., 18 Northw. Rep. 298 . Michigan—People v. Barker, 60 Mich. 277 ; s. c., 27 Northw. Rep. 539 . Minnesota-State v. Lawlor, 28 Minn. 216 . Mississippi—Fletcher v. State, 60 Miss. 675 . Ohio—Erwin v. State, 29 Ohio St. 186 . South Carolina—State v. Dodson, 16 So. Car. 453 . Tennessee—Taylor v. State, 11 Lea (Tenn.) 708. Texas—Lum v. State, 11 Tex. App. 488 . Utah—People v. Hampton. Wisconsin—Shoeffler v. State, 3 Wis. 823 . Contra: Alabama—Birdsong v. People, 47 Ala. 68 . And in People v. Hamilton, 62 Cal. 377 , it was held that if a juror is finally excused for cause, it is immaterial that the court erred in sustaining objections of the State to prior questions asked of the juror by defendant.

See State e. Winter (Iowa, 1887), 34 Northwestern Rep. 475, and State v. Freeman, (N. C. 1888), 5 Southeastern Rep. 921, to the effect that such error is cured by the exclusion of the objectionable juror by a peremptory challenge.

It is certainly not cured if the exclusion was effected by exhausting one’s peremptory challenges before the jury was complete. People v. Casey, 96 N. Y. 115 .

It is cured if the exclusion was effected by the accused’s use of a peremptory challenge, and the jury was nevertheless completed without exhausting his peremptory challenges. Freeman v. People, 4 Den. 9 , 31; People v. Knickerbocker, 1 Park. Cr. 302 .

III. Error in sustaining a challenge for cause is not cured by fact that an impartial jury was nevertheless secured.

On this point, compare People v. Jewett, 3 Wend. 314 , holding the contrary of grand jurors, and Northern Pac. R. R. Co. v. Herbert, 116 U. S. 642 , a civil case, holding that a trial by an impartial jury being all that a party can demand, the allowance of a challenge for

In Hayes v. Missouri, 120 U. S. 68 , 71, it was held that a local statute increasing the number of peremptory challenges for the prosecution, did not impair the constitutional right of the accused, because, as the court, said “The right to challenge is the right to reject, not to select, a juror. If from those who remain an impartial jury is obtained, the constitutional right of the accused is maintained.”

In the Anarchists’ Case (U. S. 1887) 36 Abb. L. J. 450, the court say: “ Of the correctness of these rulings we entertain no doubt.” Whether these two rules of the case in the text, as to error in ruling on challenges will be applied or distinguished as inapplicable in civil cases, Query ?