Haight, J.
The defendant was indicted for having feloniously, willfully and maliciously made an assault upon Augusta Ebelt, his wife, and with a deliberate and premeditated design to effect her death did choke, suffocate and strangle her until she died.
Upon the trial it appeared that the defendant was twenty-two years of age; that he lived in Mount Vernon, Westchester county, at the home of his father and mother on Franklin avenue with his wife, to whom he was married on the 9th day of February, 1902; that they had had trouble and that on two-occasions when she had been ill she had returned to her mother’s home and had remained two or three months at a time; that he had been requested to support her and had refused, and that he had been arrested and taken before a magistrate to compel him to render proper support. It further appeared that the decedent was killed on Friday night, July 24th, 1903, and that her body was secreted in an old sewer, which had become broken and out of use, and that her body was discovered on Sunday afternoon thereafter. On the following Monday the defendant was found at work at White Plains driving a team for a telephone company and was notified of his wife’s death and asked to come and identify her. This he did, in company with the coroner and a police officer, and having identified the body he was detained in custody. Subsequently he sent for the coroner, and upon his arrival told him that he wished to make a statement to him. He was then informed that his statement would be voluntary and that it could be used against him. It was then made in the presence of the police commissioner, a stenographer taking it down, and after it was taken it was read over to him and he signed it. The coroner’s recollection of it is as follows:
u
He said ho came home Friday night and told his wife that he had a position for her over on Wolf’s lane and wanted to know if she would take it and that she said yes; that after supper she got her hat and they started out for Wolf’s- lane. When they came to the place where the sewer was on Garden avenue, they went down there and sat down and he accused her of having connection wi th a man that worked for some ice concern at City Island. She denied it, . . . and he told her that she lied, and I think he said that they were sitting bn the fence at the time and from there they sat down on the bank; that he turned
around and grabbed her by the throat and choked her into insensibility—choked her until she could not speak or move. After that he took a shoe-string and put it around her neck and knotted it as best he could, picked her up and carried her, head downward, to the sewer and threw her in. I asked him where he got the shoe-string, and he said out of the bureau drawer, Friday morning. He said about two weeks previous he had gone over to the sewer, and that he thought it was a good place to put her out of the way; that he had become disgusted with his wife and looked around for a place to put her out of the way. He said that was a good place.”
The defense interposed was that of insanity, and evidence was given tending to show that, at the timo of his birth, he received injuries to his head; that he was greatly troubled with headaches and had had scarlet fever and malaria; that he was a great smoker of cigarettes; that they had a deleterious effect upon his mental capacity, and a physician, in answer to a hypothetical question based upon the testimony given in support of his defense stated that he considered him to be a moral degenerate suffering from moral insanity; that he did not possess sufficient intelligence to know right from wrong. On the other hand, it was shown from those for whom he had worked that he knew his business and worked well, and was an ordinarily intelligent man; that he was accomplished as an accordion player, and his mother, on cross-examination, admitted that he had gone to school regularly and had learned readily, and was a smart boy in school and that he had worked steadily and had made money. Doctors Samuel B. Lyon and Carlos F.. McDonald were sworn as experts, both of whom, after a' personal examination of the defendant, on August first and third, 1903, gave it as their opinion that he was sane.
The
evidence was of that character as to make it a proper question for the jury to dispose of, and we are of the opinion that the evidence given fully sustained the verdict rendered.
The appellant presents hut one question which he calls upon us to review, and that has reference to the challenge interposed to the panel of trial jurors. The challenge is in writing and is made upon the ground “of a material departure to the prejudice of the defendant from the forms prescribed by the Code of Civil Procedure in respect to the drawing and return of the jury, and specifies the following facts as constituting the ground of challenge, to wit: That said jurors were not selected, drawn and served in the manner and form provided for by-sections 1035, 1036, 1037, 1038, 1039, 1042, 1043, 1044, 1045, 1046, 1047 and 1048 of the Code of Civil Procedure. Said jury having been selected, drawn.-and served under and pursuant to the provisions of chapter 491 of the Laws of 1892, as amended by chapter 269 of the Laws of 1893, which chapter 491 of the Laws of 1892 and said amendment thereof is claimed by the defendant to be unconstitutional and void and passed in contravention of article three, section eighteen of tire Constitution cf the State of New York.” Then follows an offer to prove certain facts, which constitutes no part of the challenge authorized by the Code. ■ To the challenge made the district attorney interposed an exception and thereupon the court overruled the challenge. The jurors were then drawn from the box in the usual way, were examined by the defendant’s counsel and those that proved satisfactory were duly sworn as the jurors to try the case. Tinder the practice prescribed by the Code of Criminal Procedure, a challenge to the panel of jurors is required to be in writing, distinctly specifying the facts constituting the ground of challenge. It must be founded on a material departure to the prejudice of the defendant from the forms prescribed by the Code of Civil Procedure in respect to the drawing and return of the jury, or of the intentional omission of the sheriff to summon one or more of the jurors drawn. If the sufficiency of the facts alleged as a ground of challenge be denied the adverse party may except to the challenge which
must be entered upon the minutes of the court, and thereupon the court, assuming the facts as alleged to be true, must determine the sufficiency of the challenge. If the challenge is deemed sufficient the court, if justice require it, may permit the party excepting to withdraw his exception and to deny the facts alleged in the challenge. If the exception be allowed the court may, in like manner, permit an amendment of the challenge. If the challenge be denied the court must proceed to try the question of fact raised with reference thereto and determine whether the challenge should be allowed or disallowed. (§§ 362 to 368.) -It will, thus, appear that an exception interposed by the district attorney raised the question as to whether the facts alleged as constituting the ground of challenge were sufficient to establish the unconstitutionality of the acts of the legislature under which it is alleged that the jurors were drawn and served.
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Haight, J.
The defendant was indicted for having feloniously, willfully and maliciously made an assault upon Augusta Ebelt, his wife, and with a deliberate and premeditated design to effect her death did choke, suffocate and strangle her until she died.
Upon the trial it appeared that the defendant was twenty-two years of age; that he lived in Mount Vernon, Westchester county, at the home of his father and mother on Franklin avenue with his wife, to whom he was married on the 9th day of February, 1902; that they had had trouble and that on two-occasions when she had been ill she had returned to her mother’s home and had remained two or three months at a time; that he had been requested to support her and had refused, and that he had been arrested and taken before a magistrate to compel him to render proper support. It further appeared that the decedent was killed on Friday night, July 24th, 1903, and that her body was secreted in an old sewer, which had become broken and out of use, and that her body was discovered on Sunday afternoon thereafter. On the following Monday the defendant was found at work at White Plains driving a team for a telephone company and was notified of his wife’s death and asked to come and identify her. This he did, in company with the coroner and a police officer, and having identified the body he was detained in custody. Subsequently he sent for the coroner, and upon his arrival told him that he wished to make a statement to him. He was then informed that his statement would be voluntary and that it could be used against him. It was then made in the presence of the police commissioner, a stenographer taking it down, and after it was taken it was read over to him and he signed it. The coroner’s recollection of it is as follows:
u
He said ho came home Friday night and told his wife that he had a position for her over on Wolf’s lane and wanted to know if she would take it and that she said yes; that after supper she got her hat and they started out for Wolf’s- lane. When they came to the place where the sewer was on Garden avenue, they went down there and sat down and he accused her of having connection wi th a man that worked for some ice concern at City Island. She denied it, . . . and he told her that she lied, and I think he said that they were sitting bn the fence at the time and from there they sat down on the bank; that he turned
around and grabbed her by the throat and choked her into insensibility—choked her until she could not speak or move. After that he took a shoe-string and put it around her neck and knotted it as best he could, picked her up and carried her, head downward, to the sewer and threw her in. I asked him where he got the shoe-string, and he said out of the bureau drawer, Friday morning. He said about two weeks previous he had gone over to the sewer, and that he thought it was a good place to put her out of the way; that he had become disgusted with his wife and looked around for a place to put her out of the way. He said that was a good place.”
The defense interposed was that of insanity, and evidence was given tending to show that, at the timo of his birth, he received injuries to his head; that he was greatly troubled with headaches and had had scarlet fever and malaria; that he was a great smoker of cigarettes; that they had a deleterious effect upon his mental capacity, and a physician, in answer to a hypothetical question based upon the testimony given in support of his defense stated that he considered him to be a moral degenerate suffering from moral insanity; that he did not possess sufficient intelligence to know right from wrong. On the other hand, it was shown from those for whom he had worked that he knew his business and worked well, and was an ordinarily intelligent man; that he was accomplished as an accordion player, and his mother, on cross-examination, admitted that he had gone to school regularly and had learned readily, and was a smart boy in school and that he had worked steadily and had made money. Doctors Samuel B. Lyon and Carlos F.. McDonald were sworn as experts, both of whom, after a' personal examination of the defendant, on August first and third, 1903, gave it as their opinion that he was sane.
The
evidence was of that character as to make it a proper question for the jury to dispose of, and we are of the opinion that the evidence given fully sustained the verdict rendered.
The appellant presents hut one question which he calls upon us to review, and that has reference to the challenge interposed to the panel of trial jurors. The challenge is in writing and is made upon the ground “of a material departure to the prejudice of the defendant from the forms prescribed by the Code of Civil Procedure in respect to the drawing and return of the jury, and specifies the following facts as constituting the ground of challenge, to wit: That said jurors were not selected, drawn and served in the manner and form provided for by-sections 1035, 1036, 1037, 1038, 1039, 1042, 1043, 1044, 1045, 1046, 1047 and 1048 of the Code of Civil Procedure. Said jury having been selected, drawn.-and served under and pursuant to the provisions of chapter 491 of the Laws of 1892, as amended by chapter 269 of the Laws of 1893, which chapter 491 of the Laws of 1892 and said amendment thereof is claimed by the defendant to be unconstitutional and void and passed in contravention of article three, section eighteen of tire Constitution cf the State of New York.” Then follows an offer to prove certain facts, which constitutes no part of the challenge authorized by the Code. ■ To the challenge made the district attorney interposed an exception and thereupon the court overruled the challenge. The jurors were then drawn from the box in the usual way, were examined by the defendant’s counsel and those that proved satisfactory were duly sworn as the jurors to try the case. Tinder the practice prescribed by the Code of Criminal Procedure, a challenge to the panel of jurors is required to be in writing, distinctly specifying the facts constituting the ground of challenge. It must be founded on a material departure to the prejudice of the defendant from the forms prescribed by the Code of Civil Procedure in respect to the drawing and return of the jury, or of the intentional omission of the sheriff to summon one or more of the jurors drawn. If the sufficiency of the facts alleged as a ground of challenge be denied the adverse party may except to the challenge which
must be entered upon the minutes of the court, and thereupon the court, assuming the facts as alleged to be true, must determine the sufficiency of the challenge. If the challenge is deemed sufficient the court, if justice require it, may permit the party excepting to withdraw his exception and to deny the facts alleged in the challenge. If the exception be allowed the court may, in like manner, permit an amendment of the challenge. If the challenge be denied the court must proceed to try the question of fact raised with reference thereto and determine whether the challenge should be allowed or disallowed. (§§ 362 to 368.) -It will, thus, appear that an exception interposed by the district attorney raised the question as to whether the facts alleged as constituting the ground of challenge were sufficient to establish the unconstitutionality of the acts of the legislature under which it is alleged that the jurors were drawn and served. Article three, section ■ eighteen, of the Constitution provides that the Legislature shall not pass a private or local bill for" the selecting, drawing, summoning or impaneling of grand or petit jurors; but this provision, under section twenty-three of the same article, does not apply to any bill, or the amendment of any bill which shall be reported to the Legislature by commissioners who have been appointed pursuant to law to revise the statutes. A commission to revise the statutes was authorized by chapter 289 of the Laws of 1889. By chapter 15 of the Laws of 1892 an appropriation was made for the continuance of the commission so authorized, and in 1893, by chapter 24, section twenty-three was added to the legislative law, making it the duty of the commissioners of statutory revision “ on request of either house of the Legislature or of any committee, member or officer thereof to draft or revise bills, to render opinions as to the constitutionality, consistency or other legal effect of proposed legislation and to report by bill such measures as they deem expedient.” This act was approved on the 6th da.y of February, 1893,- and took effect immediately.
It was, therefore, in full force and effect when .chapter 269 of the Laws of 1893, under which the jury in question were alleged to have been drawn, was passed and became a law. The question, therefore, as to whether this act is violative of article three, section eighteen, of the Constitution, depends upon the fact as to whether the bill was reported to the Legislature by the commissioners appointed by law to revise the statutes. Again referring to the facts alleged in the challenge as constituting the grounds thereof, we find no allegation to the effect that the bill was not so reported by such commissioners of revision, It, therefore, appears to us that the allegations of fact were insufficient to warrant the conclusion of law that the act w’as in contravention of article three, section eighteen of the Constitution.
"While we might properly rest our decision, on the question considered ydth reference to the sufficiency of the facts alleged in the challenge, we have concluded, in view of the great public importance of the questions arising with reference to the validity of juries impaneled for the purpose of trying questions of fact in both civil and criminal cases involving the lives, liberties and properties of our people, to determine the question of the validity of the trial, upon the assumption that the act in question was violative of the provisions of the Constitution to which we have referred.
As we have seen, each juror after being drawn was separately examined by each side and each side expressed satisfaction with each juror before he was sworn to try the case. The act in question provided for a commissioner of jurors in the county of Westchester, who was required to select from the names of persons residing in the county suitable persons to serve as jurors; These persons, so selected, were to be taken from the body of the county, possessing the same qualifications in substance as those provided for by the Code of Civil Procedure. It is, therefore, not apparent how the defendant was prejudiced
in respect to the drawing and return of the jurors. He got good, qualified men, selected from the qualified citizens of the entire county and persons with whom he was entirely satisfied after submitting each juror to a personal examination. The jury was drawn and summoned in accordance with the provisions of a statute. Presumably there was no other jury list in existence in this county from which jurors could be drawn. Section eighteen of the Constitution, to" which allusion has been made, applies as well to grand jurors as petit jurors. We think, therefore, the same rule applies to trial jurors that exists with reference to grand jurors.
In the ease of People v. Petrea (92 N. Y. 128, 143; s. c., 1 N. Y. Crim. 233, 243), Andrews, J., in delivering the opinion of the court, says: “ We are of opinion that no constitutional right of the defendant was invaded by holding him to answer to the indictment. The grand jury, although not selected in pursuance of a valid law, were selected under color of law and semblance of legal authority. The defendant, in fact, enjoyed all the protection which he would have had if the jurors had been selected and drawn pursuant to the general statutes. Rothing could well be more unsubstantial than the alleged right asserted by the defendant under the circumstances of the case. He was entitled to have an indictment found by a grand jury before being put upon his trial. An indictment was found by a body, drawn, summoned and sworn as a grand jury, before a competent court, and composed of good 'and lawful men. This, we think, fulfilled the constitutional guaranty. The jury which found the indictment was a
da facto
jury selected and organized under the forms of law.” To our minds the remarks of the learned judge apply with equal force to the petit or trial jury that were summoned and sworn in this case. (See, also, People v. Borgstrom, 118 N. Y. 254; s. c., 18 N. Y. Crim. 259.)
The judgment and conviction should be affirmed.