People v. Clark — 16 N.Y.S. 473

Majority

p. 473

People v. Clark

(Supreme Court, General Term, Third Department.

November 30, 1891.)

Headnote

Jükors—Competency—Consanguinity—Third Cousins.

Under Code Grim. Proc. § 377, making consanguinity to the complainant within the ninth degree a good cause for challenge in criminal prosecutions, one is not competent as a juror who is a third cousin to the complainant, for third cousins are related in the eighth degree.

Appeal from court of sessions, Washington county. Beversed.

This was a proceeding against Peter Clark, Jr., before a justice of the peace, on the complaint of B. W. Townsend, for selling liquor without a license. At the trial defendant demanded a jury. One of the jurors was challenged for implied bias, under Code Crim. Proc. § 377, subd. 1, which specifies as a cause for such challenge “consanguinity or affinity in the ninth degree to the person alleged to be injured by the crime charged, or on whose complaint the prosecution was instituted, or to the defendant.” He testified that he was related to said Townsend, but not nearer than third or fourth cousin, and the challenge was overruled. The jury found a verdict of guilty, and from the .judgment thereon defendant appealed to the court of sessions. The judgment was there affirmed, and he appeals to this court. For concurring opinion by Landon, J., see 16 H. Y. Supp. 695.

Argued before Learned, P. J., and Landon and Mayham, JJ.

A. D. Arnold, for appellant. Edgar Hull, Dist. Atty., (W. Martin Jones, of counsel,) for the People.

A juror, when called, was challenged for implied bias. Code Grim. Proc. § 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 germon,” 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 his father’s (or mother’s) cousin. But the child of a first cousin is sometimes 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 consobriniaonsobrince; second cousins, sobrini sobrince. Dickson, Manuale Latinitatis. The son or daughter of a first cousin was propñor sobrino, proprior sobrince,—nearer than a second cousin; the exact equivalent being a first cousin once removed. Just. Inst, (by Sanders) III. 5, 6. 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 Bl. Comm. p. 207, note 6, and table of consanguinity. The rule given in section 46, Code Civil Proc., although differently expressed, is the same in result. It will be seen, therefore, that third cousins are in the eighth degree to each other. For although as to inheritance the common law adopted the rule of the canon law, (2 Bl. Comm.,) yet the rule of the civilians prevailed in ecclesiastical law, and in the matter of distribution of estates. Sweezey v. Willis, 1 Bradf. (Sur.) 495.

Judgment and conviction reversed. All concur.