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People v. Clark

10 N.Y. Crim. 57 Court Supreme Court-General Term-Third Department. Decision date 1891-11-30 English

Decision Majority — LEARNED, P. J. · Concurring — LANDON, J.

Contents

Majority

p. 57
Supreme Court-General Term-Third Department.
Nov. 30, 1891.
PEOPLE v. PETER CLARK.
( 41 St. Rep. 448 ; 62 Hun 84 .)

Headnote

'Jurors—Disqualification—Relationship.
Upon the trial of a complaint, the third cousin of the complainant is incompetent as a juror.
Appeal by defendant from a judgment of the court of sessions of Washington county, affirming a judgment of conviction by the special sessions, f ounded upon the verdict of a jury, in the town of Hartford, said county, finding the defendant guilty of selling intoxicating cider without a license.
The defendant upon impanelling the jury in the special sessions challenged Walter Chapman “for implied bias.” Chapman was then sworn thereupon testified that he was related to the complainant, but not nearer than third or fourth cousin, whereupon the court overruled the challenge and Chapman sat as one of the jurors. Section 377, Code Criminal Procedure, makes such challenge valid if the consanguinity or affinity between the complainant and person drawn as a juror is within the ninth degree.
p. 58
A. D. Arnold, for appellant.
Edgar Hull (W. Martin Jones, of counsel), for respondents.

A juror when called was challenged for implied bias. Gode Criminal Procedure, § 377.- Being sworn, he testified that he was related to the complainant, but was not nearer than third or fourth cousin.

Consanguinity with the complainant within the ninth degree is a good ground for challenge.

The children of brothers and sisters are first cousins to each ■other, otherwise called cousins german or simply cousins.

The children of first cousins are second cousins to each other.

The children of second cousins are third cousins to each other.

The child of a first cousin is a first cousin once removed to his father’s (or mother’s) cousin. So the child of a second cousin is a second cousin once removed to hi® father’s (or mother’s) ■cousin. ■ ! ■

But the child of a first cousin is sometime® loosely called a second cousin to his father’s (or mother’s) cousin.

This is accurately stated in the Century Dictionary sub voce Cousin.

In the civil law first cousins were oonsobrini, consobrinae; second cousins, sobrini, sobrinae Dickson Manuale Latintatis. The son or daughter of a first cousin was proprior sobrino, proprior sobrinae; nearer than a second cousin; the exact equivalent being a first cousin once removed. Just. Inst, by bandars, III. 6, 5. - i i . ' 1

Third cousins then have a common great-great-grandfather. The mode of computation of degrees used by the civilians, not by the canonists, is to count from one person up to the common ancestor and down to the other. Of course the person from whom the count begins is not counted and he in whom it ends is. See 2 Blackstone’s Comm. page 207, note 6, and table of consanguinity. The rule given in section 46, Code of Civil Procedure, although differently expressed, is the same in result. It will be

Concurrence

p. 59
seen, therefore, that third cousins are in the eighth degree to each ether.

For although as to inheritance the common law adopted the rule of the canon law, 2 Black. Comm., yet the rule of the civilians prevailed in ecclesiastical law and in the matter of distribution of estates. Sweezy v. Willis, 1 Brad. 495 .

Judgment and conviction reversed,

MAYHAM, J., concurs.

Concurring in the opinion of the presiding justice, I desire to add that the recent provisions of the Code of Civil Procedure, prescribing the method of computing the degrees of consanguinity and affinity of judges and jurors in civil cases, sections 46,1166, was doubtless intended to dispel an existing obscurity in that respect, and although it does not in, terms apply to criminal cases, yet we may adopt a familiar rule applicable to remedial legislation, and extend its provisions to like cases within its spirit and intention, although not strictly within its letter, and thus apply this method of computation to criminal cases. In this view my brethren concur. The judgment must be reversed. We might order a new trial, Code Grim. Pro. §§ 764, 772, but we doubt whether it would be useful in this case.

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