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People v. McQuade

110 N.Y. 284 Court N.Y. Decision date 1888-10-02 English

Decision Majority — Andrews, J. · Dissent — Peckham, J.,

Contents

Majority

p. 284
The People of The State of New York, Respondent, v. Arthur J. McQuade, Appellant.

Headnote

Every statutory provision intended for the benefit of the defendant in a criminal action confers a substantial right which may not be disregarded without his consent.
The provision of the Code of Criminal Procedure (g 885), declaring that “ challenges to an individual juror * * * must be taken first by the People and then by the defendant' ’ is imperad ye, and not directory merely; it is not a mere rule of procedure, but is a right secured to the defendant which is matter of substance, and so is not within the provision (g 542) authorizing the appellate court in a criminal case to disregard “ technical errors or defects which do not affect the substantial rights of the parties.’'
Where, therefore, upbn a criminal trial neither party exercised the right of peremptory challenge until after the box was full, when the district attorney challenged peremptorily certain of the jurors, and others having been selected to take their places, he declared himself content, and after the defendant had exercised his right the prosecution, against the objection and exception of the defendant, was permitted to challenge peremptorily other jurors who were in the box when the district attorney declared himself content. Sold, error; and that the error was a substantial one requiring a reversal.
It seems that under the provision of said Code (g 455), explicitly confining exceptions which may be taken by a defendant on the trial of an indictment, in allowing or disallowing a challenge to a juror for actual bias, to exceptions made to the decision of the court on matter of law the decision of the trial court on the question of the indifferency of a juror is not reviewable except in the absence of any evidence to support it; and so, where the challenge is overruled, the decision may not be reviewed ( unless the evidence discloses a condition of mind on the part of the juror which, as matter of law, renders him incompetent, for actual bias-
p. 285
Notwithstanding the provision of said Code (§ 376), declaring that an existing opinion or impression as to the guilt or innocence of the defendant in a criminal trial shall not be a sufficient ground of challenge to a juror, if he can declare, on oath, his belief that such opinion or inference will not influence his verdict, and that he can render an impartial verdict according to the evidence, an existing opinion, by a person called as a juror, of the guilt or innocence of the accused is pi'ima jade a disqualification, and the declaration required of the juror to avoid the objection must be certain and unequivocal.
It is not enough that there are detached statements which, if alone considered, would seem to meet the statutory requirement, if, on construing the whole statement, it is apparent that the juror is not able to express an absolute belief that his opinion will not influence his verdict, he is disqualified.
Where, therefore, a person called as a juror, on a challenge for bias, testified in substance that he had an opinion as to the guilt of the accused, which amounted to a conviction, founded upon a careful perusal of the testimony given on a former trial, and where his declaration of his belief that he could render an impartial verdict was not absolute, but was qualified by a doubt. Held, that, as matter of law, the overruling of the challenge was error; and that the error was not cured by the fact that the defendant had not exhausted his peremptory challenges and might have excluded the juror;
People v. Casey ( 96 N. Y. 115 ); People v. Carpenter (102 id. 238 ) limited.
The provision of said Code (% 455, sub. 2), permitting exceptions to be taken to a decision “ allowing or disallowing such challenge,” is not limited to exceptions to rulings as to jurors who participated in the verdict. It does not permit an exception to a ruling admitting or rejecting testimony on a trial of the challenge, except where the challenge is overruled and the juror participates in the verdict, but permits an exception to the erroneous rejection of a juror, and such an exception is reviewable on appeal.
Under said Code (§ 485), proceedings on challenges to jurors who partici pated in the verdict must be incorporated in the judgment-roll, and the decision made thereon may be reviewed on exceptions as of course; but if the defendant desires a review of his exceptions where the challenge was sustained, he must incorporate them in a bill of exceptions to be settled and annexed to the roll. (§ 456.)
As to whether the erroneous exclusion of a single juror from the panel by mistake or inadvertence, where it can be fairly inferred that no injury resulted to the defendant, may be disregarded, quaere.
The fact that a person called as a juror is well acquainted with one of the counsel for the defendant, and had advised with him on some occasion not connected with the case on trial, is not a cause of challenge for bias (Code of Crim. Pro. §§ 376, 877, 378), and the exclusion of a juror on such a ground is error, for which an exception lies.
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Upon the trial of an indictment for bribery, it was alleged, on the part of the prosecution, that defendant, as a member of the board of aldermen of the city of New York, in combination with other members of the board and for a sum of money paid to them for their votes, voted for a resolution granting to a street railroad corporation the right to lay its tracks on Broadway in said city. The prosecution was allowed to prove, under objection and exception, that another of the aldermen, alleged to have been engaged in the conspiracy, had been indicted for bribery and had not been brought to trial; also, that four persons implicated in the bribery were at the time of the trial, and for some time previous thereto, had been out of the jurisdiction and were residing in Canada. This proof was offered as corroborative of two of the alleged conspirators who had been called as witnesses for the prosecution and had testified to facts showing the commission of the crime charged. Held, that the evidence was incompetent for this or any other purpose.
While the acts and declarations of a co-conspirator, done in furtherance and execution of the common design, are admissible against a conspirator on trial for the common offense, when the conspiracy is at an end and its purpose accomplished or abandoned, no subsequent act or declaration of one of the conspirators is admissible against another.
Defendant proved that one of the conspirators so testifying for the prosecution had been called as a witness before a committee of the state senate some two years after the accomplishment of the alleged conspiracy, and had then denied, under' oath, the existence of the facts testified to by him on the trial. The prosecution was permitted to prove, under objection and exception, that just before his examination before said committee he had a consultation with another of the alleged conspirators and was directed by the latter as to how he should testify. Held, error.
(Argued June 19, 1888;
decided October 2, 1888.)
Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 18, 1888, which affirmed a judgment of the Court of General Sessions of the Peace in and for the city and county of Eew York, entered upon a verdict convicting the defendant of the crime of bribery.
The facts, so far as material to the questions discussed, are stated in the opinion.
Benjamin F. Tracy for appellant.
The jury intended by section 2, article 1 of the Constitution, which declares that “ a trial by jury in all cases in which it has been heretofore used shall remain inviolate forever,” is a common-law jury of
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twelve men. ( Wynehamer v. People, 13 N. Y. 378 ; Stokes v. People, 53 id. 171.) The jury of twelve who are to try the case must be selected by lot from the whole panel. (Code Civ. Pro. §§ 1085, 1086, 1087, 1103.) The jury must be selected and impanneled in the manner specified by the statute. The court has no power to select a jury, directly or indirectly. It cannot set aside jurors who are qualified, and thus limit the number from which the jury are to be selected. (Hildreth v. City of Troy, 101 N. Y. 234 .) The question here involved may be reviewed on appeal. (Code Crim. Pro. § 455.) The right of peremptory challenge given to an accused person is a substantial right. (2 Cooley’s Black. 352.) The defendant’s right to a peremptory challenge has been waived when the juror has been passed over to the court or the prosecution. (Comm. v. Rogers, 7 Met. 500 ; U. S. v. Hanway, 2 Wall. Jr. 143 ; State v. Potter, 18 Conn. 166 ; State v. Cameron, 2 Chand. 172 ; Patton v. Ash, 2 S. & R. 123.) Where a -juror has formed an opinion touching the guilt or innocence of the defendant, he is disqualified, unless he testifies to two facts: First, that he believes that such' opinion or impression will not influence his verdict; and, second, that he can render an impartial verdict according to the evidence. (People v. Casey, 96 N. Y. 115 -122.) If the juror challenged testifies to the two facts above stated, literally or in substance, his competency becomes a question of fact to be determined in the first instance by the trial judge, subject to review by the appellate court. (Balbo v. People, 80 N. Y. 484 -494; Greenfield v. People, 74 id. 277; People v. Bodine, 1 Denio, 281 ; 4 Bl. Com. 353; 2 D. & B. 205 ; 4 Ohio, 350 ; People v. Casey, 96 N. Y. 193 ; Peoples. Carpenter, 102 id. 238, 244 ; Freeman v. People, 4 Denio, 31 .) It was the right of the defendant to know whether the jurymen who were to try Mm were interested in opposing the grant for which he had voted. (Crim. Code, § 455; People v. Bodine, 1 Denio, 281 , 310; People v. Honeyman, 3 id. 121; 1 Robt. [Va.] 736, 742; People v. Freeman, 4 Denio, 31 ; Friery v. People, 2 Abb. Ct. of App. Dec. 220; 54 Barb. 331 .) The
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court erred in admitting the evidence to show that certain of the aldermen alleged to have been of the “ 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. (Sharp Case, 107 N. Y. 464 ; 1 Whar. Crim. Law [7th ed.] § 703; 1 Greenl. Ev. § 111; 3 id. § 94; People v. Daris, 56 N. Y. 95 , 103; N. Y. Guar. (& Indem. Co. v. Gleason, 78 id. 503; 1 Taylor’s Ev. §§ 527, 530, 542; 3 Greenl. Ev. § 94; Anderson v. R. Co., 54 N. Y. 334 ; Hutchins v. Hutchins, 98 id. 56.) The error could not be cured by striking out the evidence even if that had been done. (Newton v. State, 21 Fla. 53 ; Erben v. Lorillard, 19 N. Y. 299 ; Furst v. R. R. Co., 72 id. 542; Arthur v. Griswold, 55 id. 400.) 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 .) A juror is to examine and appreciate the credibility of witnesses according to his best knowledge and observation in the light of experience and the laws of human action. (1 Cow. [H. & D. notes], 599.) Testimony, therefore, will for either purpose be in general regarded as accurate and true, unless there is reason from its own inherent qualities, or from extrinsic circumstances, for forming an opposite conclusion. (Reid’s Inquiry into the Human Mind, § 24; Elmood v. W. U. Tel. Co., 45 N. Y. 549 ; Newton v. Pope, 1 Cow. 109 .) A witness, though uncontradicted and unimpeached by impeaching testimony, may be disbelieved when his testimony is intrinsically improbable. (Stilwell v. Carpenter [Ct. of App.] 2 Abb. N. C. 257 ; Kavanah v. Wilson, 70 N. Y. 179 ; Wait v. McNeil, 7 Mass. 260 ; Harding v. Brooks, 5 Pick. 244 .) Where a witness testifies at one time, in direct contradiction to the testimony given by him at another in relation to the same transaction, and admits that on one of these occasions his testimony was knowingly and deliberately false, he is not entitled to credit and his evidence should be disregarded (Patterson v.
p. 289
Dunlap, 5 Cow. 243 ; People v. Evans, 40 N. Y. 1 ; Deering v. Metealf, 74 id. 501; People v. Petmecky, 99 id. 415.) The court erred in refusing to charge: “ That if the jury believe that any witness upon this trial has willfully testified falsely touching any material matter, they are at liberty to disregard his entire evidence.” (Wilkins v. Earle, 44 N. Y. 172 ; Dunlap v. Patterson, 5 Cow. 243 ; People v. Petmecky, 99 N. Y. 415 ; Roth v. Wells, 29 id. 471 .) It is the business of the court to see that a proper direction be given to the jury in point of law upon the evidence. (People v. Enoch, 13 Wend. 164 .) The judge ought to respond to each proposition, provided it presents a question of law bearing upon the evidence. (Zabriskie v. Smith, 13 N. Y. 338 .) It is the duty of the court to instruct the jury as to the legal effect of conclusions of fact which they are at liberty to deduce from the evidence. (Foster v. People, 50 N. Y. 598 .) A party is entitled to a distinct charge without qualification if entitled at all. (Meyer v. Clark, 45 N. Y. 285 -289.) It is the legal right of counsel on the trial of an action to submit propositions of law bearing upon the evidence, and it is the duty of the court to instruct the jury on each proposition. The denial of such right is the subject of exception and review upon appeal. (Chapman, v. McCormick, 86 N. Y. 479 ; Lamar v. State, 64 Miss. 428 ; Aldridge v. State, 59 id. 250.)
McKenzie Semple for respondent.
A defendant’s 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 & Merriam on Juries, 228, 229; Grisson v. State, 2 Texas App. 376, 378; Code of Crim. Pro. § 455.) The ruling of the court in allowing or disallowing a challenge to a juror who did not participate in the verdict is not reviewable upon appeal. (Code Crim. Pro. §§ 455, 485, 517.) 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. Buddensiek,
p. 290
103 N. Y. 487 ; People v. Carpenter, 102 id. 238.) 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 v. Carpenter, 102 N. Y. 238 .) The right of peremptory challenge was not waived by the failure of the district attorney to challenge peremptorily in the first instance; and the court did not err in allowing the district attorney to challenge the jurors in question at the time and in the manner stated by the defendant in his fourth point. (People v. Carpenter, 102 N. Y. 238 .) The ruling of the court in admitting evidence as to the absence from the jurisdiction, of Keenan, Maloney, Dempsey, De Lacey and Sayles, does not constitute such error as would justify a reversal. (People v. Sharp, 107 N. Y. 427 .) 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. (Stover v. People, 56 N. Y. 319 .) The court did not err in refusing to charge the jury, upon the request of the defendant, that if the evidence of a witness is of itself improbable, the jury are at liberty to disregard it, even though such witness is not impeached or contradicted by other testimohy. (Salter v. People, 58 N. Y. 357 ; People v. Richards, 13 Abb. N. C. 370 ; Moett v. People, 85 N. Y. 373 ; People v. Mills, 3 N. Y. Crim. R. 184 ; People v. McAllum, 3 id. 189 ; Thompson on Charging the Jury, § 92.) There is no rule of law which makes it the duty of a jury to disregard the evidence of a competent witness, either because he is an accomplice in the commission of crime or because he admits that he has previously sworn falsely in reference to the same transaction. (People v. O'Neil, 109 N. Y. 251 .)

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

p. 291
Broadway Surface Railroad franchise, by the common council of the city of New York, in 1884. The defendant was a member of the board of aldermen and voted for the granting of the franchise. He has been twice tried on the indictment. On the first trial «the jury disagreed, and on the second trial, in November, 1866, he was convicted. The conviction was affirmed on appeal to the General Term of the Supreme Court, and this appeal is from the judgment of affirmance. Exceptions were taken by the defendant on the trial to certain rulings in the proceedings in impanneling the jury, to the admission and rejection of evidence, and to the charge to the jury, and to refusals to charge. 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 impanneling 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 places, 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 were 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 defendant excepted. The defendant then challenged peremptorily some of the jurors in the box, and their places were filled as before.

p. 292
Subsequently the prosecution, against the objection and exception of the defendant, was permitted to challenge peremptorily jurors who were in the box when the district attorney first declared himself content, and who were not among the six excluded upon his peremptory challenge in the first instance. Afterwards the district attorney was permitted, in repeated instances, against the remonstrance and exception of the defendant, to resume the right of peremptory challenge after peremptory challenges had been interposed by the defendant, and to challenge peremptorily jurors who were in the box when the defendant commenced to challenge, not excluded on his challenge, and as to whom the district attorney had before declared himself content. The court several times overruled the point raised by the defendant that the People were bound to exercise the right of peremptory challenge first. The court, on one occasion, said: “ I have already passed upon that subject. I did hold, probably not in this case nor on this trial, but I did on a former trial, that either side had a right to interpose a peremptory challenge up to the very moment the jury were sworn. I shall adhere to that ruling and give you the benefit of an exception.” The ruling was plainly erroneous. The subject is regulated by 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 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 statutory rule. The only answer to the exception of the defendant on this point, if there is any, is to be found in section 542, before quoted. If the error did not affect a substantial right of the defendant,, it must be disregarded. We are of opinion, however, that the order in which peremptory challenges are to be taken is matter of substance, and that section 385, so far at least as it requires the People to first exercise the right of peremptory challenge, is imperative and
p. 293
not directory. The right of peremptory challenge given to an accused person is a substantial right. Blaokstone says: “ It is full of tenderness and humanity to prisoners, for which the English laws are justly famous.” (2 Bl. Com. 352.) By the ancient common law it seems that the crown had the right of peremptory challenge, but this was changed by statute 33, Edward 1, statute 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 chapter 332 of the Laws of 1858, five on trials of indictments for murder and felonies punishable with imprisonment for more than ten years, and in other cases three. But the d ef endant was allowed twenty peremptory challenges in case of an indictment for murder or felony, punishable with ten years or more imprisonment. (2 R. S. 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 privilege of the accused. The statute of Edward I was enacted, as Lord Coke says (Coke Lyt. 1566), to put an end to the practice of permitting the king to challenge peremptorily, because it was found to be mischievous to the subject, tending to infinite delays and dangers. When first permitted in this state the right was greatly restricted, and until the act of 1873, a much larger number of peremptory challenges was given to an accused person than to the prosecution. The act of 1873, did not prescribe in what order the right of peremptory challenge should be exercised. This was first prescribed by section 385
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of the Code of Criminal Procedure, and the requirement of that section, that the People shall challenge first, is the only substantial advantage remaining to a defendant. The requirement of section 542 of the Code of Criminal Procedure is to be reasonably and fairly applied. The court is no longer required, to reverse a conviction because a mere technical error is disclosed by the record. If error is found it may be disregarded if it appears that no substantial right of the defendant was prejudiced. But it is plain that every statutory provision intended for the benefit of the accused confers a substantial right which cannot be disregarded without his consent. 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 challenges in criminal cases 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 challenges to be used in other cases. There is a choice, moreover, as between qualified jurors. Both the prosecution and the accused may reject, on peremptory challenge, a qualified juror without assigning cause. The right of peremptory challenge was originally given to the accused that he might exclude from the jury a juror against whom he entertained a prejudice, although not founded upon any reason which would disqualify him. So, also, where he has a preference in favor of a juror legally selected and qualified to sit, who is not peremptorily challenged by the prosecution in the first instance, the observance of the statute secures to the accused his presence on the jury. On the other hand, if the prosecutor is permitted to reserve its peremptory challenge after the right has been exercised by
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the defendant, he is enabled to acquire information as to what jurors are satisfactory to the defendant, and to exclude them from the panel for that reason. This is an advantage to which, under the statute, he is not entitled. If the practice pursued in this case can be maintained, we see no reason why the prosecutor might not, in the first instance, have refused to challenge at all, reserving his right to challenge peremptorily until after the defendant had challenged. The statute would be nullified' in that case no more than by the course actually pursued. The statute prescribing the order in which peremptory challenges should be made was not .a mere rule of procedure for the orderly conduct of criminal trials. It was a right secured to the defendant. It had at least the semblance of benefit to the accused. The statute is peremptory, .and violation of its- provisions was a substantial, and not a mere technical error.

Three persons who served on the jury, viz., Henry Orenburg, 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 these jurors should have been excluded from the jury on the ground that they had formed and expressed an opinion touching the guilt or innocence of the defendant and were not impartial. The General Term, in its opinion, in considering the exceptions 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 to the admission of these jurors, and to avoid misconstruction of our conclusion, it is proper to consider what power is vested in an appellate court, by the

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present Code of Criminal Procedure, in reviewing the decision of a trial court overruling a challenge for actual bias. Section 376, subdivision 2 of the Code, defines actual bias to consist in the existence of such a state 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 cause of challenge to the polls for favor, the question being as to the indifiereney 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 triers or of the court (where the court was substituted as the triers), on the question of indifiereney, was final and not reviewable. (People v. Bodine, 1 Denio, 308 ; People v. Sanchez, 22 N. Y. 147 .) But the act of 1873, which made all challenges triable by the court only, provided for a review on writ of error or certiorari of any decision of the court on the trial of a challenge. It was subsequently held in People v. Thomas ( 67 N. Y. 218 ), in construing the act of 1873, that it extended the power of the appellate court in respect to the review of the decision of the court on challenges for favor, and conferred jurisdiction, on writ of error or certiorari, to review the decision of the trial court on the facts as well as upon the law. This decision was followed in People v. Greenfield (supra), and the court in that case reversed the conviction on the ground that the trial judge erred in his judgment on the facts in overruling challenges for favor interposed to two of the jurymen who sat in the case. These decisions would be authoritative as to our right 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 jurors
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■were free from actual bias, although not erroneous 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 jurors ought to have been set aside. But section 455 of the Oode 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 a 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.” It will be observed that by this section an exception lies to the improper admission or exclusion of evidence on the trial of a challenge to a juror who participates in the verdict, or where, as matter of law, the court erred in allowing or disallowing a challenge. But no right is given to except to the decision of a judge on the facts, and we find no provision in the Oode for a review of decisions on the trial, other than those to which an exception lies. It seems, therefore, that the Code has restored the law as it originally stood, and that the decision of the trial judge, on the question of indifferency, is not reviewable, except in the absence of any evidence to support it, in which case it is an error of law to which an exception lies. The question raised on the exceptions to the decisions of the court in overruling the challenges to the jurors Ottenburg, Davis and Ross, turns, therefore, upon the point whether the evidence disclosed 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 Otten
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burg 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 Boad 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 m the case was sufficient, in my opinion, to remove that prejudice; and whether it would be sufficient or not I cannot tell until I hear it; and whether the prejudice I now have would influence my verdict would depend on the strength of the evidence that would be introduced in the case ; if the evidence was very strong and very convincing, it would do away with my opinion, and if it was not, I would have my opinion.” The juror, both before •and after giving this evidence, stated, in answer to the question of the district attorney, following substantially the language of section 376 of the Code, that he believed such impression or opinion would not influence his verdict and that he could render an impartial verdict according to the evidence. But at' the very conclusion of his examination he stated, in response to an inquiry of the defendant’s counsel that substituting the word “ opinion ” for the ■word “prejudice,” he intended to stand by the answers previously given to the questions of the defendant’s counsel. 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 juror 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
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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 you 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 reception of the evidence as it came from the witness stand, that is to say, as a witness appeared on the stand to-day on this trial, and you, notwithstanding what you had read of his evidence before, would you be predetermined one way or the other to credit or discredit that witness’ testimony by your present opinion? A. I think not. 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 if 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 another ? 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.
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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 people present when the opinion was expressed; I have entered into a discussion on the subject with people when sometimes different sides were maintained, one maintaining one side and the other the other, and it has been a subject of discussion between us, ■and, as a result of that discussion, opinions have been expressed.” The juror Eoss 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 by 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 case 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 a 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

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is incorporated in section 316 of the Code of Criminal Procedure. How, as formerly, an existing opinion by a person called as a juror, of the guilt or innocence of a defendant charged with crime, is prima facie a disqualification, but it is not now as before a conclusive objection, provided the juror makes the declaration specified, and the court, as judge of the fact, is satisfied that such opinion will not influence his action. But the declaration must be unequivocal. It does not satisfy the requirement of the statute if the declaration is qualified or conditional. It is not enough to be able to point to detached language which, alone considered, would seem to meet the statute requirement, if, on construing the whole declaration together, it is apparent that the juror is not able to express an absolute belief that his opinion will not influence his verdict. 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 criminating 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 ( 1 Den. 308 ), and again in Freeman v. People ( 4 Den. 31 ), both notable cases 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.
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have excluded all those who were challenged for favor and improperly allowed to sit on the jury, she was precluded from availing herself of the exception. But, in answer to this claim, Beaudslet, J., in pronouncing the opinion of the court reversing the conviction, said, “ every person on trial is entitled to a fair and impartial jury, and to secure this object challenges for cause are allowed and are unlimited. If adequate cause be shown, the juror, in every instance, should be set aside. This is the right of the party challenging, and is in no case to be granted as a favor.. Such is plainly the law where peremptory challenges do not exist, and where they do, the rule is the same. * * * Those who challenge peremptorily, may challenge for cause. Hor is this an idle ceremony which the judge may, in any case, overlook or disregard. He is bound esa débita justitice, to receive the challenge and dispose of it as the law requires. He certainly would not be allowed to disregard a challenge for cause, and' turn the party making it over to his peremptory challenges,; nor, in my opinion, can the fact that the party still has peremptory challenges at his command deprive him., of any redress which the law would otherwise give for a violation of his right; * * * In no case is the prisoner bound to resort to his right to make peremptory challenges. It is armor which he may wear or decline at his pleasure. It is for his own exclusive consideration and decision, and the court has no right to interfere with his determination, hi or should the prisoner’s refusal to make • use of her peremptory challenges, as she might have done, preclude her from raising objections to what was done by the judge; and if, in truth, errors were committed, I do not see that it is less our duty to correct them, than it would have been if the prisoner had fully exhausted her peremptory challenges.” This doctrine, so fully and carefully enunciated in this case, was reaffirmed in People v. Freeman. 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 •casual observations of the court in the People v. Casey ( 96 N. Y. 115 ), and People v. Carpenter (102 id. 238 ), where
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the point was not a material one, were not intended to disturb or overrule the doctrine settled by the prior cases. 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 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 impanneling 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. Newcombe, one of the counsel for the defendant. The record then proceeds as follows: “ Q. Had you any business with him? A. Very little. Q. Ton had some? A. Yes, sir. 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. Newcombe. You (Mr. N.) have so many clients you cannot recollect them all. The Witness—Well, it is a kind of roundabout matter. Mi’. Newcombe — I don’t know that I was ever counsel for Mr. Platt. The Court — He says you gave him advice. The Witness—Not in any business way, only I was called there. The Court — I think your acquaintance with Mr. Newcombe will disqualify you from serving in the case. Exception by defendant.” 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

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and a party as grounds 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, § 311.) The Code also defines actual bias as the existence of such 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 (§ 316), and declares that a challenge for actual bias cannot be taken for any other cause. (§ 318.) 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 Oode 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 the 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 is overruled. If the challenge is sustained the juror necessarily is excluded and does not participate in the verdict, but an exception is expressly given in that case as in the other. 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
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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 517, authorizing an appeal from a judgment of conviction, provides that, upon the appeal, “any decision of the court 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.” 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, 1 Den. supra.) Under section 485 of the Code, proceedings on challenges to jurors, who participated in the verdict, must be incorporated in the judgment-roll, and decisions thereon may be reviewed on exceptions as of course, but if the defendant desires a review of his exceptions where the challenges were sustained, he must incorporate them in a bill of exceptions, to be settled and. annexed to the roll. The legal right of a defendant may be violated as well by excluding competent jurors, as by admitting incompetent ones. He is entitled in all cases to a fair and impartial jury, but he is also entitled to insist that the jury shall be selected according to methods established with a view to secure a just and impartial administration of the jury sys
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tem. The law provides for the exclusion of incompetent jurors from the panel, and, also, of a limited number by peremptory challenge. There must be either legal cause or a peremptory challenge to justify setting aside a j uror properly drawn. The court cannot arbitrarily, and without cause, set aside a competent juror. ISTeither the court nor the parties can - select the jury except in the way pointed out by the statute. 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. Cify 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 the 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 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 call attention to the ruling in the case of this juror, and to express oiu opinion as to the legal validity of the exception, so that the important principle that jurors legally drawn can only be excluded by the court for legal cause, may not be lost sight of.

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, De Lacy and Maloney, persons also implicated in the bribery, were, at the time of

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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 Fullgraff and Duffy,” two of the aldermen alleged to have been engaged in the conspiracy, and who had, as witnesses for the prosecution, testified to facts showing the commission of the crime charged. It is perfectly plain from the record that the evidence 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 clearly incompetent for this or any other purpose. Similar evidence was given on the "trial of Sharp ( 107 N. Y. 464 ), and was held incompetent, although the avowed purpose for which it was then offered and received was to account’ for the persons named not being called as witnesses for the prosecution. Here it was offered and received upon the vital point of the corroboration of the accomplices. The admission of this evidence was in contravention of the- settled rule that only the acts and declarations of a co-conspirator, done in furtherance and execution of the common design, are admissible against one of the conspirators on trial for the common offense, and that when the conspiracy is at an end, and the purposes of the conspiracy have been fully accomplished, or the conspiracy has been abandoned, no subsequent act or declaration of one of the conspirators is admissible against another. (1 Greenl. Ev. § 111; 3 id. § 94; People v. Davis, 56 N. Y. 103 ; N. Y. Guaranty Co. v. Gleason, 78 id. 503.)
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It is scarcely necessary to say that if the evidence was inadmissible on the main issue, it was equally so when offered in corroboration of the witnesses for the People. The error was not cured by what occurred on the summing up of the case to the jury, especially in view of the refusal of the court to charge upon the request of the defendant’s counsel, “ that the jury had no right to consider the fact that certain of the aider-men, alleged to have been in the supposed corrupt combination, are now out of the jurisdiction of the court.”

(2.) It appeared that Fullgraff- had been called as a witness before a committee of the state senate. Evidence was admitted, under objection and exception, that De Lacy, just before Fullgraff’s examination before the senate commttee 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, Fullgraff, consulted with De Lacy, and had an understanding with him as to how he should testify before the senate committee, could not legally affect the defendant. Yet 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 accomplished. Fullgraff, it is true, admitted that he swore falsely before the senate committee, but the defendant claimed that that testimony was true and his testimony on the trial was false. The People were not entitled to show that his former testimony was given on consultation with De Lacy, one of the “ combine,” and in pursuance of an arrangement to which the defendant was not a party.

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.

Dissent

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

Earl, Danforth and Finch, JJ., concur; Huger, Ch. J., concurs in 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 merely, and not matter of exception upon which to grant a new trial; also, from that portion of the opinion treating of the rejection of a competent juror, as being error upon which an exception might be taken. He agrees upon the other matters discussed in the opinion.

Gray, J., dissents from the grounds stated in the opinion, but 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, that 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.

Cases cited