People v. Wilber — 39 N.Y. St. Rep. 743

Majority

p. 743

The People, Resp’ts, v. Edward Wilber, App’lt.

(Supreme Court, General Term, Third Department,

Filed July 11, 1891.)

Headnote

1. Juby—Challenge.

On the trial of an offense under the excise laws the defendant challenged the array of jurors because they were summoned by an officer under the official control of the complainant, and on the ground that they were not fairly and impartially drawn. The record states: “People object. No testimony offered to sustain challenge. Challenge overruled." 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.

S. Statutes—Constitutional law—Laws 1890, chap. 55.

The fact that chap. 55, Laws 1890, the charter of Gloversville, provides that a certain part of Johnstown shall constitute the city of Gloversville and the rest shall be Johnstown, does not render the act unconstitutional within art. 3, § 16, of the constitution.

3. Same.

Nor is the provision of the act giving the recorder authority to hold courts of special sessions unconstitutional under art. 8, § 17, of the constitution.

Appeal from judgment of the court of sessions of Fulton county, affirming in part the judgment of the recorder’s court of the city of Gloversville, convicting - defendant of the offense of selling liquor without a license, and modifying the sentence to ninety days imprisonment

Clark L. Jordan, for app’lt; William Green (Edgar A. Spencer. of counsel), for resp’ts.

—This case was submitted without argument We have endeavored to understand on what legal grounds the ■defendant asks a reversal.

We cannot on this appeal review the refusal of the county judge to grant the certificate authorized by § 57, Code of Crim. Procedure.

Before any jurors were drawn the defendant challenged the array, on the ground that the jury was summoned by an officer connected with the police department of Gloversville and under the official control of the complainant, who is chief of the police of that city, and that said jury were not fairly and impartially drawn.

The record says: “ People object; no testimony offered to sustain challenge; challenge overruled.”

The People do not appear to have insisted that the challenge should be in writing, Code Crim. Pro., § 363 ; and at any rate it is written in the record. It is not clearly stated whether the People excepted to the challenge. Code Crim. Pro., § 364, or denied the facts,_ § 366. But from the statement “ no testimony offered to sustain challenge,” we think that the understanding must have been that the facts were denied. If the challenge had been excepted to under § 364, then the court would have tried the sufficiency, assuming the facts alleged therein to be true. It is the part of the appellant to show affirmatively that there was error. He should, therefore, make it distinctly appear what

p. 744

coarse was taken in respect to the challenge. As he fails to do this, we think that in a case of this kind we are to take the view more favorable to the regularity of the proceedings.

If the facts of the challenge were denied and no evidence was given, then, of course, the challenge was properly disallowed. Now, it is quite plain that the People did not intend to admit that “ the jury were not fairly and impartially drawn,” which was a part of the challenge, and which could not be assumed to be true without evidence. It is true, as defendant says, that some of the matters alleged in his challenge appeared or might be shown by the record. But this last allegation did not so appear. We are to discover from the record, if possible, whether the People excepted, which is equivalent to demurring, or denied, by doing which there would be an issue of fact. They did not except to part and deny part And they certainly did not except to the last allegation. If they had excepted to the challenge, there would be no reason for the entry that no testimony was offered.

The next point is that the authority given to the recorder is contained in the act incorporating the city of Gloversville, chap. 55, Laws 1890, that the act is unconstitutional under § 16 of art. 3 of the constitution of New York, because it not only incorporates Gloversville but divides Johnstown. Sections 1 and 6.

Section 1 declares that a certain part of Johnstown shall con- - stitute the city of Gloversville, and § 6 declares that the rest shall be Johnstown. It does not seem to us that this is within the constitutional prohibition; especially when we consider what was the well known object of that part of the constitution.

Another objection to the recorder’s authority is that title 9 of qhe act last cited is unconstitutional under § 17, art 3. Giving the recorder authority to hold courts of special sessions is not, we think, within the prohibition of that section as it it has been construed by several decisions.

The judgment and conviction are affirmed.

Landón and Mayham, JJ., concur.