People ex rel. Kirtland v. Dillon

24 N.Y. Sup. Ct. 1

• Court: New York Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

Learned, P. J.:

The court had ordered a struck jury. Afterwai’ds, for irregularities in the striking of the jury, the court ordered that jury to be set aside and discharged, and a new jury to be struck. The defendant appeals, and insists that the court had no power to make such an order. I see no reason why the court might not set aside an order which it had made. The cases cited by the appellant, Rex v. Perry (5 Durn. & East. 453), Holt v. Meddowcroft (4 M. & S., 467), Montague v. Smith (21 Law J. Rep. [N. S.], Queen’s Bench, 73) are not in conflict with this view. The last two only hold that, while the struck jury stands, the case cannot be tried by a common jury. The first held that, when the case went off for default of the attendance of jurors, a new jury should not be struck ; but this does not touch the right of the court, on proper cause shown, to set aside the former order, and to grant another of a like character.

In the case of the Attorney-General v. Goodman (8 Price, 220), a struck jury failed to appear, and a new jury was ordered. The case of Rex v. Perry (ut supra) was cited in opposition to the order ; but it could not have been held to prevent the court from ordering a new struck jury, in a proper case.

In the present case there seems to have been some irregularity in the manner of preparing the list, from which the names are to be struck. It would be strange if the court could not set aside the former order, and afford an opportunity for a more strict compliance with the statute.

The order should be affirmed, with ten dollars costs and printing disbursements.

Present — Learned, P. J., Boardman and Bocees, JJ.

Order affirmed, with ten dollars costs and printing disbursements.