Jackson v. Sandman — 45 N.Y. St. Rep. 633

Majority

p. 633

Evelyn Jackson et al., Overseers, etc., App’lts, v. Herman Sandman, Resp’t. Evelyn Jackson et al., Resp’ts, v. Manuel Claudio, App’lt. Evelyn Jackson et al., App’lts, v. Peter De Grief, Resp't. Evelyn Jackson et al., App’lts, v. Clement McMillan, Resp’t.

(Supreme Court, General Term, Second Department,

Filed May 9, 1892.)

Headnote

1. Excise—Evidence.

In a prosecution for a violation of the excise law evidence of conversations with the overseer of the poor, in the absence of the defendant, in which the overseer said he was satisfied of defendant’s guilt, is inadmissible.

2. Same—Jurors.

Members of a law and order league, who have contributed to a fund for the prosecution of violations of the excise law and to procure evidence thereof, are parties in interest in such prosecutions, and, therefore, are disqualified to sit as jurors.

Appeals from judgments of the county court of Suffolk county, reversing judgments recovered by plaintiffs before a justice of the peace, except in the case of Claudio, in which the judgment was modified as to amount of recovery.

George F. Siackpole, for pl’ffsF. A. Carpenter (21 M. Griffing, of counsel), for def’ts.

These four actions were commenced in a court of a justice of the peace by the plaintiffs, as overseers of the poor of the town of Southold, to recover penalties against the defendants for a violation of the excise law of the state of Hew York by the sale of strong and spirituous liquors in quantities less than five gallons at a time without a license therefor.

The causes were all tried before the justice and a jury, and a verdict was rendered in each case in favor of the plaintiffs.

From the judgments entered upon such verdicts the defendants appealed to the county court- of Suffolk county, where the judgments were all reversed.

From the judgments in the county court the plaintiffs have appealed to this court.

The judgment against Henry Sandman was reversed for the erroneous admission of the testimony of the witness Stackpole,

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who testified to a conversation between himself and one of the plaintiffs in the absence of the defendant. That testimony was inadmissible, and we cannot say it was harmless, and had no influence with the jury.

The only witnesses who testified to the sale of spirituous liquors by the defendant were two men who were hired to procure testimony against the defendant and others. They were paid for the evidence they gave, and such testimony is regarded with grave suspicion by courts and juries. The independent witnesses called by the plaintiffs failed to prove any offense, and the jury might have disbelieved the two paid witnesses.

Under such circumstances the proof that the overseer of the poor of the town said he was satisfied of the guilt of the defendant may well have had influence with the jury sufficient to turn the scale and induce the verdict.

We think the judgment was properly reversed, and the judgment of the county court should b.e affirmed, with costs.

In the case of Manuel Claudio we cannot concur with the decision of the county court.

The admission of the testimony of James H. Young was erroneous. It amounted to a declaration that evidence had been secured against the defendant to prove a violation of the excise laws, and may well have affected the result.

Moreover, the challenges to the jurors, Charles T. Brooks, Henry C. Tuthill and William-H. Tuthill, were improperly overruled. They were parties in interest in the action, having contributed money for its prosecution and for the procurement of testimony to establish the offense.

We cannot disregard these errors and improprieties. The offense charged against the defendant is odious, and harmful to society, and he entered upon the trial with sufficient odium and prejudice against him without the imposition of a partial and prejudiced jury. Like all persons charged with an offense he was entitled to a fair trial in conformity with law. He was to be convicted by legal evidence addressed to an impartial court and jury, and if that machinery was insufficient for his conviction he had a right to acquittal.

The judgment of the county court and of the court of the justice of the peace should be reversed, with costs.

In the action against Peter Be Grief we agree with the county court. The admission of the testimony of James H. Young was erroneous, and so was the overruling of the challenge to the juror, Charles Robinson.

In the action against Clement McMillan the county court reversed the judgment of the court bqlow, and the plaintiffs appealed to this court.

We agree with the county court for the reasons stated in the case of Manuel Claudio, the challenges to the jurors, Joseph A. Clark and William Griffing, resting upon the same grounds as those to the jurors in that case; they had furnished money for the prosecution of this and other actions and were ready and intended to contribute more. If the plaintiffs sustained defeat in the suit

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these jurors were to assist in paying the costs, and so they had a pecuniary interest in the result of the actions. Their interests were the same as those of the plaintiffs, and differed only in degree.

It is a fundamental principle prevalent in the administration of justice that no man can be a judge in his own case or where he has a pecuniary interest, and the rulings of the justice which permitted these two men to sit as jurors after their interest was disclosed was violative of that cardinal and unyielding rule.

It may be unfortunate that these prosecutions, which were doubtless inspired'by a commendable solicitude for the welfare of the public, and the abatement of a serious local evil, have miscarried and failed in consequence of a departure from the beaten way of procedure in the trial of actions under our system of jurisprudence. But the errors are fatal and cannot be disregarded.

The judgment of the county court in this action should, therefore, be affirmed.

Barnard, P. J., and Pratt, J., concur.