People v. Thayer

132 A.D. 593, 116 N.Y.S. 821, 1909 N.Y. App. Div. LEXIS 1554

Opinion

Sewell, J.:

The defendant was convicted of the crime of robbery in the first degree. One of the ¡jurors who served-on the trial was over the age of seventy years. .

It appeared by affidavits that neither the defendant nor his counsel knew the juror was disqualified at the time of the trial.' Ho challenge or other objection to his qualification was made. The question presented is whether the acceptance of the juror by the defendant was a waiver of the objection to his qualification.

. It was early settled that a failure to object to the -qualifications . of a juror was a waiver of all objections, although the disqualification was not known to the defeated party at -the time of the trial. (Eggleston v. Smiley, 17 Johns. 133 ; Hayes v. Thompson, 15 Abb. Pr. [N. S.] 220; Seacord v. Burling, 1 How. Pr. 175 ; Bennett v. Matthews, 40 id. 428; Stedman v. Batchelor, 49 Hun, 390; Dayharsh v. Enos, 5 N. Y. 531.) The following cases sustain the claim that this rule has been generally observed in criminal cases: People v. Jewett (6 Wend. 389); People v. Rathbun (21 id. 542); People v. Mack (35 App. Div. 114); Stephens v. People (19 N. Y. 549); Pierson v. People (79 id. 424). In People v. Mack, Mr. Justice Merwin said : “ In many criminal cases it has been held to be immaterial whether or not the defendant, in cases not capital, knew before the verdict the disqualification of the juror, as long as he had an opportunity to challenge and question the juror as to his qualifications, but neglected to do so,” and cited State v. Vogel (22 Wis. 471); King v. Sutton (8 B. & C. 417); State v. Quarrel (2 Bay [S. C.] 150); Williams v. State (37 Miss. 407). But aside from these considerations the law was settled by an amendment to section 1180, of the Code of Civil Procedure (Laws of 1877, chap. 416).

Footnotes

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* The section as amended provides that, “An objection to the qualifications of a juror is available only upon a challenge,” and this provision is made to “ apply equally to a criminal and a civil action or special proceeding, and to a court of criminal and a court of civil jurisdiction” by subdivision 7 of section. 3347 of the Code of Civil Procedure. It follows that the order of the County Court should be affirmed.

A.11 concurred.

Order of the County Court affirmed.

See also Laws of 1901, chap. 243.— [Rep.