Davis, P. J.
In the progress of the trial of this case a number of exceptions were taken to the exclu[129]*129sion or admission of evidence ; and several exceptions were also taken at its close to the refusal of the court to charge several requests presented by the prisoner’s counsel. One of these latter exceptions would require careful consideration but for the fact that we are of opinion that the judgment must be reversed, and a new trial granted for an error in denying the prisoner the right of peremptory challenge of two of the jurors before they were sworn.
The question of the right of challenge arose in this manner : One Edward Eldridge was called as the first juror, and after being sworn and examined on his voir dire, the counsel for the prisoner said, “We accept this juror for the present.” To .this the court responded, “You must exhaust all your challenges before the juror takes his seat in the jury box.” The counsel for the prisoner then said, “We accept this juror.” The impaneling of the jury then proceeded, and after a large number had been called and excused, or challenged peremptorily or accepted, the panel was filled, but no one of the panel had been sworn. The following then took place as stated by the case: “Before the twelve persons seated in the jury box were sworn as jurors to try the case, the defendant’s attorney rose and addressed the court as follows : ‘ I desire of your Honor, please, to challenge peremptorily the seventh juror, Mr. Simon (Joggeshall.’ ”
The Court. It is too láte now
Defendant’s Attorney. Also the eighth juror..
The Court. I told you, and it was so understood at the commencement of the trial, that you must exhaust all your challenges before the jurors took their seats in the jury box ; and you did exercise that right, and in every instance before the jury entered the box you expressly said that the defense accepts, him. You thereby&emdash;that is by unqualifiedly accepting the juror, [130]*130waived your right to challenge the juror so accepted peremptorily, unless for some good cause shown.
Defendant s Attorney. Well, for the purpose of this case, we now challenge the eighth juror peremptorily. J
The Court. And for the reason I have stated, the challenge is not allowed.
The challenges were overruled, to all of which ruling defendant excepted.
The twelve persons above named were thereupon sworn as jurors to try this case.
At this time the prisoner’s peremptory challenges had not been exhausted.
At common law the right of peremptory challenges in cases of felony exists until the juror is actually sworn (Col. John Morris case, 4 Howell's State Trials, 1250 ; Arch. Crim. Prac. 510 ; Reg v. Sullivan, 8 Ad. & Ell. 831 ; Reg. v. Wardle, C. & M. 647 ; Lindsley v. People, 6 Park. 233). Under the constitution of the State of New York this became a part of the common law of the State, subject to such alteration and provisions as the legislature of the State shall, from time to time make, concerning the same (First Constitution, § XXXY.) and each of the subsequent and amended constitutions has continued such adoption.
The established provisions of the common law are preserved by the Code of Criminal Procedure by sections 369 and 371, the first of which enacts that “ before a juror is called, the defendant must be informed by the court, or under its direction, that if he intend to challenge an individual juror he must do so when the juror appears, and before he is sworn.” The second (§ 371) enacts that a ‘ ‘ challenge must be taken when' the juror appears and before he is sworn, but the court may, in its discretion, set aside a juror at any time before evidence is given in the action.”
[131]*131These sections establish a rule for the benefit of the accused, which not only defines his right as to time when his challenges may be made, but secures them to him by force of statutory law. Under that rule, he may challenge a person who appears as a juror, at any time before he is sworn, and it is not in the power of a court to deprive him of that right. But in this case the prisoner was deprived of that right by the peremptory adoption of a different rule, directly in conflict with that of the common law and the Code of Criminal Procedure. When the first juror was called and examined under the challenge for cause, which challenge was not sustained, the prisoner’s counsel said, “We accept the juror for the present.” The court then announced what was in effect a general rule for the case, requiring the prisoner to make his peremptory challenge of such juror before he took his seat. It is true, the language of the rule applied to the particular juror then about to take his seat; but it was afterwards interpreted by the court to be general by saying, “ I told you, and it was so understood at the commencement of the trial, that you must exhaust all your challenges, before the jurors took their seats in the jury box, . . that you must exhaust all your challenges before any juror took his seat in the jury box.” It requires no argument to show that the rule thus emphatically laid down was in striking conflict with that of the Code, which gives the prisoner in such cases the right of peremptory challenges of any juror before he is sworn. It was error for the court to abridge that right, and it needed no exception to the ruling to sustain the right. It is in principle as though, while the Code gives thirty peremptory challenges in a case punishable with death, the court had ruled that the prisoner must make but twenty or a less number, or that all peremptory challenges must be made before a challenge to the favor. Such rules [132]*132would contravene the law, we think, and exceptions would not be needed to protect a prisoner’s right.
After the panel was filled by twelve jurors, but before any one was sworn or any act done which constitutes a part of the administration of an oath, the prisoner’s counsel said he desired to challenge peremptorily, Simon Coggeshall, the seventh juror. The court said, “ it is too late now.” The counsel added, and . “also the eighth juror.” Thereupon the court stated what is above quoted, as to the rule made when the first juror was challenged, and that the counsel had accepted each juror before he took his seat in the box ; and, had therefore waived the right to challenge him peremptorily, unless for some good cause shown. The counsel added, “Well, for the purpose of this case, we now challenge the eighth juror peremptorily.” And the court answered, “ And for the reason stated the challenge is not allowed.” And the prisoner then duly excepted. The twelve jurors then in the box were thereupon sworn as the jurors to try the cause.
The exception, we think, was well taken. It is sought to be answered by the claim, that the defendant, by accepting the juror after the ruling of the court that his peremptory challenges must be made before each juror took his seat in the box, waived all right to his peremptory challenge.
But a waiver in such a case implies a voluntary and not a compulsory act. The order of the court established a.n arbitrary rule. Submission to such an order was not a waiver of the right, nor Ought it to be so construed.
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Davis, P. J.
In the progress of the trial of this case a number of exceptions were taken to the exclu[129]*129sion or admission of evidence ; and several exceptions were also taken at its close to the refusal of the court to charge several requests presented by the prisoner’s counsel. One of these latter exceptions would require careful consideration but for the fact that we are of opinion that the judgment must be reversed, and a new trial granted for an error in denying the prisoner the right of peremptory challenge of two of the jurors before they were sworn.
The question of the right of challenge arose in this manner : One Edward Eldridge was called as the first juror, and after being sworn and examined on his voir dire, the counsel for the prisoner said, “We accept this juror for the present.” To .this the court responded, “You must exhaust all your challenges before the juror takes his seat in the jury box.” The counsel for the prisoner then said, “We accept this juror.” The impaneling of the jury then proceeded, and after a large number had been called and excused, or challenged peremptorily or accepted, the panel was filled, but no one of the panel had been sworn. The following then took place as stated by the case: “Before the twelve persons seated in the jury box were sworn as jurors to try the case, the defendant’s attorney rose and addressed the court as follows : ‘ I desire of your Honor, please, to challenge peremptorily the seventh juror, Mr. Simon (Joggeshall.’ ”
The Court. It is too láte now
Defendant’s Attorney. Also the eighth juror..
The Court. I told you, and it was so understood at the commencement of the trial, that you must exhaust all your challenges before the jurors took their seats in the jury box ; and you did exercise that right, and in every instance before the jury entered the box you expressly said that the defense accepts, him. You thereby&emdash;that is by unqualifiedly accepting the juror, [130]*130waived your right to challenge the juror so accepted peremptorily, unless for some good cause shown.
Defendant s Attorney. Well, for the purpose of this case, we now challenge the eighth juror peremptorily. J
The Court. And for the reason I have stated, the challenge is not allowed.
The challenges were overruled, to all of which ruling defendant excepted.
The twelve persons above named were thereupon sworn as jurors to try this case.
At this time the prisoner’s peremptory challenges had not been exhausted.
At common law the right of peremptory challenges in cases of felony exists until the juror is actually sworn (Col. John Morris case, 4 Howell's State Trials, 1250 ; Arch. Crim. Prac. 510 ; Reg v. Sullivan, 8 Ad. & Ell. 831 ; Reg. v. Wardle, C. & M. 647 ; Lindsley v. People, 6 Park. 233). Under the constitution of the State of New York this became a part of the common law of the State, subject to such alteration and provisions as the legislature of the State shall, from time to time make, concerning the same (First Constitution, § XXXY.) and each of the subsequent and amended constitutions has continued such adoption.
The established provisions of the common law are preserved by the Code of Criminal Procedure by sections 369 and 371, the first of which enacts that “ before a juror is called, the defendant must be informed by the court, or under its direction, that if he intend to challenge an individual juror he must do so when the juror appears, and before he is sworn.” The second (§ 371) enacts that a ‘ ‘ challenge must be taken when' the juror appears and before he is sworn, but the court may, in its discretion, set aside a juror at any time before evidence is given in the action.”
[131]*131These sections establish a rule for the benefit of the accused, which not only defines his right as to time when his challenges may be made, but secures them to him by force of statutory law. Under that rule, he may challenge a person who appears as a juror, at any time before he is sworn, and it is not in the power of a court to deprive him of that right. But in this case the prisoner was deprived of that right by the peremptory adoption of a different rule, directly in conflict with that of the common law and the Code of Criminal Procedure. When the first juror was called and examined under the challenge for cause, which challenge was not sustained, the prisoner’s counsel said, “We accept the juror for the present.” The court then announced what was in effect a general rule for the case, requiring the prisoner to make his peremptory challenge of such juror before he took his seat. It is true, the language of the rule applied to the particular juror then about to take his seat; but it was afterwards interpreted by the court to be general by saying, “ I told you, and it was so understood at the commencement of the trial, that you must exhaust all your challenges, before the jurors took their seats in the jury box, . . that you must exhaust all your challenges before any juror took his seat in the jury box.” It requires no argument to show that the rule thus emphatically laid down was in striking conflict with that of the Code, which gives the prisoner in such cases the right of peremptory challenges of any juror before he is sworn. It was error for the court to abridge that right, and it needed no exception to the ruling to sustain the right. It is in principle as though, while the Code gives thirty peremptory challenges in a case punishable with death, the court had ruled that the prisoner must make but twenty or a less number, or that all peremptory challenges must be made before a challenge to the favor. Such rules [132]*132would contravene the law, we think, and exceptions would not be needed to protect a prisoner’s right.
After the panel was filled by twelve jurors, but before any one was sworn or any act done which constitutes a part of the administration of an oath, the prisoner’s counsel said he desired to challenge peremptorily, Simon Coggeshall, the seventh juror. The court said, “ it is too late now.” The counsel added, and . “also the eighth juror.” Thereupon the court stated what is above quoted, as to the rule made when the first juror was challenged, and that the counsel had accepted each juror before he took his seat in the box ; and, had therefore waived the right to challenge him peremptorily, unless for some good cause shown. The counsel added, “Well, for the purpose of this case, we now challenge the eighth juror peremptorily.” And the court answered, “ And for the reason stated the challenge is not allowed.” And the prisoner then duly excepted. The twelve jurors then in the box were thereupon sworn as the jurors to try the cause.
The exception, we think, was well taken. It is sought to be answered by the claim, that the defendant, by accepting the juror after the ruling of the court that his peremptory challenges must be made before each juror took his seat in the box, waived all right to his peremptory challenge.
But a waiver in such a case implies a voluntary and not a compulsory act. The order of the court established a.n arbitrary rule. Submission to such an order was not a waiver of the right, nor Ought it to be so construed. Counsel could not do otherwise without putting himself or his client in unpleasant antagonism with the court, and perhaps in actual contumacy. After each juror had passed the ordeal of a challenge to the favor, if he were not then prepared to challenge peremptorily, he had nothing else to do but allow him to take his seat in the box, and his saying simply, “I [133]*133accept him,” was nothing more than consenting to the juror’s taking the seat, because, under the order of the court, he must then accept or challenge him peremptorily.
When a juror is impaneled in the manner in which this was being done,—that is, by filling the panel before any one is sworn,—prudent counsel may with entire propriety husband his peremptory challenges for use against more obnoxious persons, that may be afterwards called ; and when the box is full, if his challenges are not exhausted, then he may use them to sift out any of the panel, whom his judgment, or imagination, or caprice even, leads him to reject. Besides, when the impaneling occupies considerable time, he has the opportunity to inquire touching the jurors, or to scrutinize and act upon their appearances, conduct, or any hint or suggestion of prejudice, partiality or unfitness. It is the very essence of a peremptory challenge, that it is “one for which no reas°on need be given” (as section 371 of Criminal Procedure defines it), and not unfrequently such challenges are made because the prisoner- or his counsel “don’t like the looks of the juror.” It is true the prisoner may be compelled to use his challenges as each juror appears, by the court directing that each one be sworn before he takes his seat, and that course is legal, because the law is fully complied with ; but that fact does not militate, in the slightest degree, with the right of a prisoner to challenge peremptorily up to the last moment, before the oath is administered, where the other mode of impaneling, as in this case, is pursued.
In this case, there was no express waiver of the right of peremptory challenge of either juror. And the law will not imply one from mere submission to a rigid and illegal rule made by the court, palpably [134]*134against the rights and the manifest desire of the prisoner and his counsel.
It was not too late, therefore, to raise the question of his rights, after the box was full, and before the jurors were sworn. A waiver, to have such an effect, must be plainly and intentionally made, with that object in view, and then it may be availing ; but not so where it is manifestly the effect of a compulsory rule, against which counsel merely defers for a time his protest or struggle'. It is manifest that the Code of Criminal Procedure has not relaxed any common law rule on this subject. On the contrary, it aims to preserve the rights of the accused persons, for the 367th section enjoins it upon the court, “before a juror is called,” to see that the defendant is informed “that if he intends to challenge any individual juror, he must do it when the juror appears, and before he is sworn.” It is not difficult to imagine cases in which a failure to do this would be fatal to a conviction ; but the duty becomes of slight importance if the court is at liberty to follow it with a restriction of his right of peremptory challenges within limits not recognized by the law.
But we think there was no such acceptance of the challenged jurors as prevented the exercise of the right of peremptory challenge before either of them was sworn. What was done in the way of acceptance should be construed as having been done subject to the lawful existing rights of the accused up to the time of administering the oath. There had been no peremptory challenge followed by a deliberate withdrawal of it, and no act of express xvaiver of the right to such challenge. The most that can justly be claimed is, that in deference to an absolute rule of the court, made in derogation of the rules of law, the defendant accepted the juror, and allowed him to take Ms seat for the purpose of raising the question as to Ms rights, to [135]*135the deprivation of which he was forced to submit for the time being, by afterwards challenging peremptorily before the juror was sworn. How else could he effectually raise the question 1 To be available, he must show that the ruling deprived him of some legal right. He could not do it by simply excepting to the rule; for the rule itself did not harm Mm until its operation deprived him subsequently of bis challenge. If he challenged in conformity to the rule, his challenge would of course have been allowed, and he could assign no error for the allowance, for the juror would be rejected upon his own motion. The effectual way to save his rights was therefore to wait till the jurors were in their seats in the box, and then, by challenge before the oath was administered, get an exception to the denial of Ms right thus to challenge. That this was the intention of the defendant’s counsel, rather than to waive the right of challenge, is manifest from the course he pursued. No waiver can be implied, therefore, from his omission to except to the rule made by the court. His mere saying that he accepted the juror after the examination on voir dire cannot properly be construed to be anything more than a consent that the juror should take liis seat, so that an available exception could be then taken to a refusal to allow the challenge. In Lindsley v. People (6 Park. 233), there had been no unlawful rule established by the court. After the challenge for cause had been over--, ruled, the court asked the prisoner if he challenged the juror peremptorily, to which he answered no.” The juror then took his seat, but afterwards, and before he was sworn, the defendant’s counsel insisted on challenging him peremptorily. The court denied Ms right, on the ground of express waiver-. This was held on appeal to be error. Very able opinions were written by Marvin, P. J. and Daniels, J., the latter dissenting; and the case has. bee,n. the accepted law of. [136]*136the State for many years. It is a much stronger case against the people than that now before us, for in that case the court had not held, and so instructed the prisoner, that he must challenge peremptorily before the juror took his seat, and thus compelled the prisoner to allow the juror to enter the box in order to reserve effectually the right to test the peremptory order of the court. That case is really quite decisive of the present, for in this case, it may well be said, as in Bell v. State (48 Ala. 684): “We do not think there was any intelligent and intentional waiver in this case.”
In Hendrick v. Commonwealth (5 Leigh, 709), the prisoner “elected the juror,” and he took his seat. After another juror was called, one of the counsel stated that the prisoner was acting on his advice in challenging, and in electing the juror had mistaken it. The court refused to allow the challenge, and this was held error on the appeal, as the juror had not been sworn.
In People v. Smith (24 Cal. 11), the court made the same ruling as that made in this case—that the prisoner “ must exhaust all his challenges to the jury before accepting them” After he had accepted the jurors, he claimed to challenge peremptorily, and a denial of that right was held error.
The counsel for the people cites numerous cases, on the effect of a waiver of the rights of parties, but none that establishes that an act merely conforming, in the conduct of a trial, to an arbitrary and unlawful rule, deprives a prisoner of the benefit of excepting to the effect of such a rule when he seeks to avail himself of a right conferred on him by statute.
It is not necessary, therefore, in this case, to decide that a prisoner cannot be bound by a clear and intelligent waiver of his rights of peremptory challenge of [137]*137a particular juror, made for that express purpose, for that case is not before us.
The case was tried by the learned court with great fairness and ability. The evidence doubtless justified the conviction, and although we have much hesitation, whether the refusal to charge the first request was not error, yet we think an affirmance might be justified but for the error we have so fully discussed.
The judgment must be reversed and a new trial ordered.
All concur.
Present, Noah Davis, P. J., Brady and Daniels, JJ.