People v. Mahoney — 56 N.Y. St. Rep. 143

Majority

p. 143

The People, Resp’t, v. Daniel L. Mahoney, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

1. Trial—Jurors.

A juror who, on challenge, testifies in substance that he will not give the proper effect to the testimony of an accomplice or informer, where such witness will he sworn on the part of the people, is not indifferent between the parties.

p. 144

S. Same—Opening.

The district attorney may state, in his, opening, a history of the surroundings.

Appeal from a judgment of conviction for the crime of arson in the third degree.

George Gallagher and W. J. Powers, for app’lt; Thomas W. Fitzgerald, for resp’t.

The appeal papers show that the defendant and one Morrison were jointly indicted for arson in the third degree in Richmond county. That Mahoney demanded a separate trial, and upon such trial he was convicted of that offense by the j ury. Morrison was called as a witness by the People. The defendant challenged a juror, Sheldon, who testified that he had formed an opinion which was so strong that it would take evidence to remove it, and he spoke very hesitatingly whether he would give any credence to an accomplice even if he was, corroborated. He would require strong. evidence of corroboration. A challenge was made also to a James O’Brien. This juror testified that his prejudice was so strong against, informers that he also spoke quite hesitatingly as to whether he would believe if corroborated by other witnesses. The challenged jurors were not indifferent between the people and the prisoners. The law permits the testimony of an informer. Corroboration is required. These jurors, by their examination, satisfied the trial court that even if fully corroborated they would not give the proper effect to the testimony of the people. The district attorney, in opening, stated that the fire in question was the last of four, all burning at the same time in the town of Castleton. This was not improper. It was a history of the surroundings. It was part of the people’s case that the prisoners set fire to all the buildings, so on fire at the same time, on the night of December 2, 1892. The accomplice so testified. There was sufficient corroboration of the testimony of the accomplice. Eliza Young places both prisoners and accomplice at the fire. She tried to put out the fire. The two accused prisoners did nothing and were impudent to the witness. Morrison testifies to the fact of Mrs. Young being at the fire as soon as it was started. Thefe is abundant other corroboration to the effect that the two accused prisoners were seen together on the night in question and in the neighborhood of the fires.

The conviction and judgment should be affirmed.