People v. De Camp — 32 N.Y. St. Rep. 1043

Majority

p. 1043

The People, Resp’ts, v. John De Camp, App’lt.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Criminal law — Jury—Temporary absence of justice of sessions.

Daring the temporary absence of one of the justices of sessions after recess, the remaining portion of a jury were drawn and sworn withct objection, and when the trial commenced the court was complete. Held, that the drawing of the jury during the absence of the justice was not a fatal defect in the trial; that defendant was not prejudiced, as he had a constitutional jury drawn according to law and with his assent.

Appeal from judgment of the Eockland county court of sessions convicting defendant of an assault.

Irving Brown, for app’lt; Garrett Z. Snider, dist.-att’y, for resp’ts.

The defendant was put upon trial for an assault at the Eockland court of sessions. When the trial commenced there was a full bench, consisting of the county judge and the two sessions justices. Bight jurors were empanelled in the regular way,' when the court took a recess. One of the sessions, justices was late in his arrival, and the other four jurors were drawn and sworn in his absence. The accused and his counsel were both present during the empanelling of the whole twelve jurors, and no objection was made to the continuance of the drawing of the last four jurors from the regular box, nor to the administering of the oath to the jury. Before the trial actually commenced the court was full, and then no objection was made to the irregularity in drawing the jury in the absence of the session judge. The accused had a constitutional jury in number and drawn according to law and in his presence and under the rules of law applicable to the case with his assent. A waiver of right is implied by sitting by in silence.

Judgment affirmed.

Dykman and Pratt, JJ., concur.