Majority
p. 371The People vs. Ellis and others.
Headnote
On the trial óf a party for a Misdemcanór, a jilror may be withdrawn on the application of the public prosecutor, after the jury have been impannelled and sworn.This case came up by certiorari from the Albany general sessions. John Ellis, Davis Ellis and David G. Herrick were put on trial for an assault and battery and riot committed by them. After the district attorney rested,the counsel for the defendants offered to prove that on the day preceding the trial, two of the defendants,viz. Jo/tM. Ellis andflismc/c, were put on trial on the same indictment,and after evidence had been given on the part of the prosecution, the court, on the motion of the district attorney and against the consent of the defendants, withdrew a juror, for the purpose of enabling the district attorney to bring on the trial against the three defendants at the same time ; which evidence was refused to be received. The defendants were convicted and fined. The case was brought before this court by certiorari upon a bill of exceptions.
J. M ’Kown &f J. Van Burén, for defendants.
E. Livingston, (district attorney,) contra.
By the Court,
In the case of The People v. Olcott, 2 Johns. Cas. 307 , the power of the court as to the withdrawal of a juror after the jury was impannelled and sworn,
p. 372
in the case of a misdemeanor, seems to be put on the same f00t¡ng ag ;n civil cases, in which it rests very much in the exercise of a sound discretion. 8 Cowen, 127. The same indulgence is not extended in this court to all criminal cases not capital, The People v. Barrett & Ward, 2 Caines, 304, though respectable authorities have gone that length. 2 Gall. 364 . We see no good objection to the application of the rule in all cases of misdemeanor.
Judgment affirmed.