People v. Damron

The defendant has been convicted by the judgment of this court rendered against him on the 30th day of January, 1913, of the crime of grand larceny in the first degree, and has taken an appeal from the said judgment, and now moves upon the minutes of the trial and the proceedings subsequent thereto at the Special Term for a certificate of reasonable doubt.

[1] In People v. Tirnauer, 77 Misc. Rep. 387 , 136 N. Y. Supp. 833 , I had occasion to consider the rules governing the Special Term in the determination of these applications, and from the authorities there reviewed the rule was ascertained to be that the court hearing the application need not arrive at a positive conclusion that the trial court erred, but it is enough if in the opinion of the court there is reasonable doubt whether the judgment should stand, and, further, that it is not necessary for the applicant to show that the alleged error did, in fact, prejudice the defendant, but the court must determine that the error complained of could not in any way have affected or prejudiced the defendant before it is warranted in denying a certificate. The application is “founded upon the record of the cause,” and the certificate, if one be granted, “must recite briefly the particular rulings believed to have been erroneous, together with any other grounds upon which it is granted.”

^[2] It seems to me that a certificate of reasonable doubt should be granted in this case for the following reasons: The defendant was tried before a jury drawn from a special panel. At the opening of the case his counsel submitted a challenge in writing to the array or panel of special jurors so drawn, stating the grounds of the'challenge. The learned district attorney did not except to the challenge on the ground of its insufficiency, as provided by section 364 of the Code of Criminal Procedure, and no exception in writing or otherwise was entered upon the minutes of the court, as therein required. The provisions of the

In the Petrea Case (People v. Petrea, 30 Hun, 98 , affirmed in 92 N. Y. 128 ) the conviction was affirmed in a case where the grand jury had been impaneled under a law which was void; but in that case, as will be noted at page 103 of 30 Hun, the difficulty in regard to the challenge to the array was that it was not in writing. The court say:

“None of the proceedings required by sections 365 and 366 were taken, so that here was no exception to the challenge. Section 364. We do not know whether the court held the challenge to be sufficient or the allegations to be untrue. Nor does it even appear what evidence was offered, so that we can judge whether it was properly excluded or not.”^[1]

The learned district attorney, in his brief submitted on this motion, in discussing the grounds of objection upon which the challenge proceeded, says the jury was properly drawn, but that, even if it were not:

“A mere irregularity in doing so is no cause for complaint by the defendant, as it did not prejudice or injure him or his rights.”

It seems to me that this is not a correct statement of the law, in so far as it maintains thát the defendant was not prejudiced, even though the jury were not properly drawn. At least he was entitled to have the issue raised by his challenge tried in the legal method prescribed by the statute before he himself was put on trial' before such a jury. The methods of raising.and trying the issues of law and fact which arise by the interposition of a challenge to the panel are stated in Coxe v. People, 80 N. Y. 500 ; Gardner v. Turner, 9 Johns. 260 ; Gardiner v. People, 6 Parker, Cr. R. 155 . See, also, Co. Litt. (1639 Ed.) part 1, 156, 158; Pringle v. Huse, 1 Cow. 432 , 436, note; 3 Wooddeson’s Vin. Lect. 347, note 1.

Doubt was formerly expressed whether the rules governing challenges to the array were applicable to special juries, or were confined to common juries (see note in 1 Cow. at page 436, and cases there cited); but the present practice is to allow such a challenge. In People v. Wilber, 15 N. Y. Supp. 435 ,^[1] where a challenge to the array was made, the record, after the challenge had been made, read as follows:

“People object; no testimony offered to sustain challenge; challenge overruled.”

The court at General Term, Third Department, held that it should be assumed from such record that the people denied the facts alleged, and, no evidence being offered to sustain them, the challenge was properly overruled. In the present case the people did not either “object,” nor “except,” nor deny, and so no issue was raised which called upon the defendant to produce proof in support of the facts stated in his challenge, and the court was not justified, as it seems to me, in peremptorily overruling the challenge, unless it was so clearly frivolous on its face as not to require any argument.