Friery v. People

54 Barb. 319, 1865 N.Y. App. Div. LEXIS 200

Opinion

By the Court,

Sutherland, J.

It appeared from the challenge to the array, that the statute regulating the drawing and summoning of jurors had been directly violated or grossly disregarded, and the very important question in this case is, did the court below err in sustaining the demurrer to the challenge, and in refusing to grant the array.

The same question was presented in Ferris’s case, argued at the same term,

(a) and though I have serious doubts upon the point, yet I have not been able to satisfy myself that I would be justified in dissenting from the views expressed by Justice Leonard in his opinion in that ease.

The question is, with what purpose or intent were these statutory regulations for the drawing and summoning jurors made? Were they made for the benefit of the parties to trials by jury, and for the purpose of securing such parties (in civil and criminal proceedings) an impartial array of jurors, from which the jury to try the issue, might be taken; or were these statutory regulations made for the purpose of securing an impartial distribution among citizens of the onerous duty of performing jury service? If the former was the purpose or intent, then it is clear that the demurrer to the challenge to the array should have been overruled, and the array quashed; for then it was the prisoner’s right to have the statutory regulations complied with, independent of any suggestion of fraud or of misconduct, other than a failure to observe the statutory regulations. If, however, the purpose of the regulations was merely to secure a fair and impartial distribution of the .jury duty among the citizens at large, then, in the absence of any suggestion of fraud or of misconduct, other than the mere failure to observe the regulations, it appears to me that the public only can complain of the disregard of the regulations. I am inclined to adopt the latter view, though with a good deal of hesitation.

A more thorough examination of the history of the common law challenge to the array than I have been able to make, would probably throw much light on the question of the probable purpose of these statutory regulations.

I concur in Judge Leonard’s opinion in the case of Ferris, with less hesitation, from the fact that the Court of Appeals will undoubtedly have to pass upon the question in that case or this, perhaps in both.

The other questions in this case appear to me to he free from difficulty.

The juror Davis was challenged on the ground that he did not own real estate, and had not been taxed for personal estate. The juror testified that he did not own any real estate; that he owned personal estate, but had never yet been taxed for it, though he expected tó be during the year. The challenge was overruled, and the juror was sworn as a juror.

The property or assessment qualifications of jurors, prescribed by the Eevised Statutes, appear to have been repealed as to the city of New York, by the act of December 15th, 1847. (Davies’ Laws, 941.) It would seem, then, that the challenge was properly overruled.

Several jurors were challenged for .principal cause first, and then for favor, upon the ground that they had formed or expressed an opinion, and upon the triors finding against the.challenges, were then challenged peremptorily by the prisoner. The case of Freeman v. The People (4 Denio, 31) is a sufficient authority for holding that the questions raised previous to the peremptory challenges of these jurors are not open for examination at the instance of the' prisoner.

Other jurors (Hadden, Brewster, Wood, Hazen and others) were challenged first, but for principal cause, on the ground that they had formed or expressed an opinion, and upon these challenges being overruled, were then challenged for favor, and upon the triors finding against the challenges, were then sworn as jurors.

I think the ease of Freeman v. The People (supra) is an authority for holding that, as to these jurors, no error'was committed, either in overruling the challenge for principal cause, or in the charge of the recorder to the triors. He appears, fairly and properly, to have left the question Of bias or indifference, between the people and the prisoner, to the triors.

I think the evidence as to the acts and declarations of the prisoner previous to the homicide, as to the sick dog, two-edged dagger knife, mustard cup, &c., were clearly admissible, as having a bearing on the question of malice or intent.

I can find no error in the charge of the recorder to the jury.

[New York General Term, September 18, 1865.

What he said to the jury as to intoxication as a defense, was in accordance with what I understand to be well settled principles of law.

"Upon the whole, I think the conviction should be in all respects affirmed.

Ingraham, Sutherland and Peckham, Justices.]

Reported in the Court of Appeals, 31 How. Prac. Rep. 140, 35 N. Y. Rep. 125.