People v. Clark — 41 N.Y. St. Rep. 448

Majority

p. 448

The People, Resp’ts, v. Peter Clark, Jr., App’lt.

(Supreme Court, General Term, Third Department,

Filed November 30, 1891.)

Headnote

Jurors—Disqualification—Relationship.

A challenge for implied Mas is valid where the juror is a third cousin of the complainant. Third cousins are related to each other in the eighth, degree.

Appeal by defendant from a judgment of the court of sessions, of Washington county affirming a judgment of conviction by the special sessions, founded 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 impannellingthe 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 was not nearer than third or fourth cousin, whereupon the court overruled the challenge and Chapman sat as one of the jurors. Section 377, Codé Crim. Pro., makes such challenge valid if the consanguinity or affinity between the complainant and person drawn as a juror is within the ninth degree.

A. D. Arnold, for app’lt; Edgar Hull (W. Martin Jones, of counsel), for resp’ts.

A juror when called was challenged for implied bias. Code 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 ior 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 consobrini, consobrince; second cousins, sobrini, sobrina Dickson Manv.ale Latintatis. The son or daughter of a first cousin was proprior sobrino, proprior sobrina;

Concurrence

p. 449

nearer than a second cousin; the exact equivalent being a first cousin once removed. Just. Inst, by Sandars, III. 6, 5.

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 § 46, Code of Civil Procedure, 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 Black. Comm., yet the rule of the civilians, prevailed in ecclesiastical law and in the matter of distribution of estates. Sweezey 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 provision of the Code of Civil Precedure, prescribing the method of computing the degrees of consanguinity and affinity of judges and jurors in civil cases, §§ 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.