author: King. J. Mitchell, J. —

text:
    Supreme Court. New York General Term,
    December, 185 ,

      Edmonds, Mitchell and King, Justices.
    Henry Carnal plaintiff in error vs. The People def’ts in error
    A juror may be challenged to the favor, after a challenge to the same juror, for principal cause, has been tried and overruled.
    Where, after a challenge for principal cause had been tried and overruled, a challenge to the same juror was interposed “ to the favor,” it was held that the form of the challenge was sufficient without stating specifically the grounds of challenge.
    Where an exception is taken so indistinctly that the court can not readily perceive the exact point of the objection, the appellate court will disregard it. Per Mitchell, J.
    This was a writ of error to the New York Oyer and Termi-ner, where the plaintiff in error was tried for murder, Justice Edmonds presiding, and sentenced to death. A bill of exceptions having been settled, a writ of error was allowed with a stay of proceedings. The questions presented by the exceptions are fully stated in the opinion of the court.

      H. L. Clinton and A. L. Jordan, for the prisoner.

      JY. B. Blunt (Dist. Att’y), for the people.
   King. J.

The first exception to the proceedings at the trial is thus stated in the bill of exceptions:

After several jurors had been called and challenged to the favor on the part of the prisoner and set aside, Charles Mason was called as a juror and appeared and was challenged for principal cause on the part of the prisoner, and the challenge denied by the counsel for the people, the said Charles Mason having been sworn to testify the truth as to his competency to serve as a juror, testified that he had not formed or expressed any opinion as to the guilt or innocence of the accused, whereupon the challenge for principal cause was overruled, and the counsel for the prisoner then challenged tswírt perwn íot favor, but the court thereupon decided that the juror ha-'ñvg been challenged for principal cause, and on such challenge £xamined rs to his indifferency, and said cause of challenge having been heard and decided and the juror found indifferent, it was too late to interpose a challenge to the favor, to which decision the counsel for the prisoner then and there duly excepted. Said person was then sworn as a juror to try the said cause.

It is contended on the part of the prisoner, that the court erred in refusing to allow a challenge to the favor, after challenge for principal cause had been overruled by the court.

On behalf of the people it is contended that if a party has more than one cause of challenge to a juror, he must take them all at once, and can not, after the decision of a challenge for cause, again challenge the same juror for a second cause; though he may peremptorily. And next, that the court was at liberty to refuse the challenge, no cause of challenge being alleged.

To which, on behalf of the prisoner, it is replied that challenges to the favor are to be tried by triers, and challenges for principal cause may be tried by the court: that the rule requiring all causes of challenge to be shown at once, can only mean such causes of challenge as are triable by the same tribunal; that all principal causes of challenge must be urged together, and all causes of challenge to the favor must be urged together, but not all causes both principal and to the favor at the same time.

And next, that it is not necessary to show cause of challenge to the favor, and had it been the decision of the court disallowing any challenge to the favor for the reasons assigned, rendered it unnecessary to show any cause.

Two questions arise upon the first exception presented in the bill.

First: Did the judge err in holding that after the decision disallowing a principal challenge to a juror for cause, the prisoner could not interpose a challenge to the favor in relation to the same juror.

And, second, if the judge did err, was the error committed in reference to a point presented by the case and upon which he was called to pass, or upon an abstract proposition of law not applicable to the matter before him.

As to the first question, there are rules laid down in the books on the subject of challenges which, if taken without qualification and to the extent which the generality of their terms import, would fully sustain the position that where, upon a principal challenge for cause, a juror had been found indifferent, the same juror could not be challenged to the favor.

Lord Coke is usually cited as first collecting the learning relative to challenges, and among the general rules laid down by him is this: (Coke’s Inst., p. 158, a) “He that hath divers challenges must take them all at once, and the law so requireth indifferent trials as divers challenges are not accounted double.” Upon his authority the same rule is repeated in Bacon’s Abridgment Title Juries (E.) 11; Burns’ Justice, Title Jurors N. 111; Joy on Confessions, Law Library, vol. 24, p. 223; Trials per pais, vol. 1, p. 197; and by Chitty, in his work on Criminal Law, vol. 1, 5th Am. Ed. p. 545. Upon the same authority the rule is stated, “ If there be several objections to the same juror they must be all suggested at the same time.” In Tiials per pais, vol. 1, p. 200, it is said, ■“ If one challenge a juror and it be found against the challenger, he may not challenge the juror for a second cause. For this no authority is cited, and it probably is only Ihe author’s deduction from the general rule laid down by Coke. In Hale’s Pleas of the Crown (vol. 2, p 274, 1st Am. Ed.), it is stated, “When a prisoner challengeth for cause, he ought to show his cause presently, because it is the king’s suit, but some books are that he shall not show cause till the panel be perused; but he must show all his causes together. (Per 24 Eliz., C. B. Brackett’s case.) This case I have not been able to find.

The general rule thus laid down by Lord Coke, it is obvious from other portions of his note on challenges, is not correct to the full extent which its terms import.

Challenges are divided by him into challenges to the array and challenges to the polls.

Challenges to-the array are subdivided into challenges for principal cause and challenges to the favor. (Coke’s Com. p. 156, a.)

Challenges to the polls are said to be of four kinds; peremptory, principal, which induce favor, and for default of hundredors; the latter now obsolete. (P. 156, 6.)

Peremptory, without showing any cause. Principal, so called because if it be found true it standeth sufficient of itself, without leaving any thing to the conscience or discretion of triors. These principal challenges are again classified under four heads: propter honoris respectum, propter defectum, prop-ter affectum,, propter delictum; and in treating of challenges propter affectum, they are stated to be again subdivided into principal challenges and challenges to the favor (p. 157, a.), which would seem to confine challenges to the favor to challenges included in the subdivision propter affec-tum. But there appears to be some confusion in Lord Coke’s classifications in first stating in his classification of challenges that there are four kinds, viz.: among others, principal and for default of hundredors, and afterwards subdividing principal challenge into four heads and among others a challenge propter defectum. He includes under this latter head a challenge for want of hundredors, which he at first classified separately; and so in respect to challenges which induce favor, first stating them as a separate class of challenges distinct from principal challenges, and afterwards including them under one head of principal challenges, he again treats of them as a distinct class (p. 157, 6), as challenges concluding to the favor, where either party can not take any principal challenge, but showeth causes of favor which must be left to the conscience and discretion of the triors, upon hearing their evidence to find him favorable or not favorable.

It thus seems that the correct classification of all challenges to the polls is, first, into challenge for principal cause, which, if found true, standeth sufficient of itself without leaving any thing to the conscience or discretion of the triors. Second, challenges concluding to the favor, when either party can not take any principal challenge but showeth causes of favor, which must be left to the conscience and discretion of the triors to find the juror favorable or not favorable. And third peremptory without any cause assigned.

And thus challenges to the array and to the polls, so far as they are challenges for cause, admit of the same classification into principal challenges and challenges to the favor; the challenge to the array being in respect to some matter affecting the officer returning the panel of jurors, the challenge to the polls being in respect to some matter affecting the jurors individually.

The general rule first stated that divers challenges must be taken together is then first qualified by the rule laid down by the same authors that after challenge to the array disallowed a challenge to the polls may be taken.

It is further qualified by the mode in which challenges are to be stated and to be tried.

It is stated in Joy on Confessions (vol. 24, Law Library, p. 228), that when a challenge is made, the adverse party may either demur (which brings into consideration the legal validity of the matter of challenge), or counterplead by setting up some new matter consistent with the matter of challenge to vacate and annul it as a ground of challenge, or he may deny what is alleged. for matter of challenge and it is then and there only that triors are to be appointed.

It seems to me probable that in early times the court, upon the established distinction that to them belongs the decision of questions of law, and to the jury the decision of questions of fact, would only have decided upon challenges when by demurrer the facts stated as cause of challenge was admitted to be true, and their sufficiency to exclude the array or the juror alone disputed; but it appears now to be established that the court may pass upon a challenge for principal cause, as well upon questions of fact as of law, and that triors are only necessary upon challenges to the favor. (1 Chitty’s Crim. Law, 5th Jim. Ed. p. 549.)

If, therefore, challenges to the favor can not be interposed when, upon challenge for principal cause, the juror has been found indifferent, the party challenging is deprived of a benefit conferred by law that triors should pass upon the question of the unindifferency of the juror, and is compelled to submit to the decision of the court, which, without his assent, is not the tribunal to determine challenges to the favor. In fact, different questions arise under the two challenges; if principal cause is shown, the juror must be set aside, and if allowed to serve, it would be error which would appear upon the record, and even before the introduction of bills of exceptions in criminal cases, would have furnished grounds for reversing the judgment; but the challenge to the favor is to be determined by the conscience arid discretion of the triors alone and from their finding there is no appeal.

Again, it is stated in Jacob’s Law Dictionary by Tomlins (Title Jury, II, p. 579, vol. 3, 1st Am. Ed.), that, “ if one take a principal challenge against a juror, he can not afterwards challenge that juror for favor and waive his former challenge, but a challenge may be made to the polls after it has been made to the array, citing Wood, 592. If the work intended be Wood’s.Institutes of the Laws of England, I have not been able to find in it the position which it is cited to sustain, and which, if founded on authority, would go far to support the rule that all challenges for cause must be taken together and decided by one trial.

But there are authorities to the contrary.

In Trials per pais [vol. 1 p. 189), it is said if a man challenge a juror for nonsufficiency of freehold, and this is adjudged against him, yet he may challenge for favor and this shall be tried, citing 10 H. 6, 18; Roll. Trial, 658, pl. 3. Thus sustaining a challenge to the polls for favor after an adverse decision on a challenge for principal cause.

In Hoare v. Brown [Cro. Eliz. p. 369), in an action of replevin a defendant would have challenged the array ore tenus, because it was returned by one Stouner, sheriff, after he had received a writ of discharge; and it vas held by the court that he could not challenge it for that cause because it would be a direct averment against the record, for it is returned by him as sheriff and the return accepted. But by advice of the court he made his challenge to the array because it was favorably made and returned in favor of the party, &c., and issue being joined thereupon and all this matter given in evidence, the court directed the triors that it was not duly made and returned, for it was without warrant, whereupon the array was quashed. Thus sus-sustaining a challenge to the array for favor after a challenge for principal cause allowed.

I have thus endeavored from a careful examination of Coke’s Institutes and Trials per pais, works usually cited as authorities on the subject of challenges to jurors, to ascertain if the rule that divers causes of challenge must be taken together can be held to exclude a challenge to the favor after a challenge for principal cause disallowed, and feel satisfied that such is not the meaning of the rule but that it only means that all causes of principal challenge must be taken together and be tried at the same time, and if disallowed a challenge to the favor may be interposed; but that all causes for this latter challenge must be assigned together and tried at the same time; at least, that after one trial no fresh cause of challenge to the favor can be urged, unless arising subsequently to trial.

In this state, the authorities appear fully to sustain the conclusion thus arrived at. I have carefully searched the reports for cases on the subject, and in support of the first proposition, that the prisoner has a legal right to challenge to the favor after a challenge for principal cause has been decided against him, refer to the following instances where such challenges have been taken without objection:

In The People v. Freeman (4 Denio, p. 9), Beach, a juror, was challenged for principal cause, and the challenge was overruled. He was then challenged to the favor, triors were appointed, the judge charged them, they found the juror indifferent, he was sworn, and ihe prisoner was found guilty. The supreme court reversed the judgment, for, among other errors, an error committed by the judge, in charging the triors. If the prisoner had not the legal right to challenge to the favor after a challenge for principal cause disallowed, however erroneous the judge’s charge might have been, no error would have been committed which could be reviewed in the court above.

In the People v. Honeyman (3 Denio, p. 121), Roberts, a ju-juror, was challenged for principal cause; the challenge was denied and tried by the court and disallowed. The same juror was then challenged to the favor, and the triors found him indifferent and he was sworn.

In the supreme court no comment was made upon the fact that challenge to the favor had been taken after challenge for principal cause.

In The People v. Mather (4 Wendell, 229), Samuel Clark-was challenged for principal cause, and the challenge was overruled; he was then challenged to the favor, and the triors found the juror not indifferent. These separate challenges are not commented upon as improper by the supreme court. These cases, strongly contested as they were, furnish some evidence that the general opinion both of the bench and the bar has been, that the same juror might be challenged to the favor after a challenge to him for principal cause had been allowed. I have entertained much more doubt on the other question presented by the exception in this case, whether the judge, whatever were his reasons, erred in refusing to receive the challenge to the favor as it appears upon the record, without cause assigned. The challenge to the favor is a challenge for cause, and if no cause is assigned, according to the doctrine, though not the practice, in the case of The People v. Freeman (4 Denio, p. 9), the challenge need not be received. The reported cases in this state do not, however, that I have been able to discover, disclose an instance where the general form of the challenge has been objected to; thus, in The People v. Lohman (2 Barb. Sup. Ct. Rep. p. 216), a juror was challenged to the favor, it does not appear from the record that any cause was assigned or that the omission was objected to in the Oyer or Terminer or in the supreme court, or in the court of appeals, in the report of the same case. (1 Comstock Rep. p. 2801) In Freeman’s case, cited before, (4 Denio, p. 9) Beach was challenged to the favor; no cause was assigned, and Judge Beardsley, though he lays

'down the rule that a challenge without cause assigned may be disregarded, practically violates the rule by reviewing the judge’s charge to triors on such a challenge without cause assigned. In The People v. Honeyman (3 Denio, p. 121), the juror was challenged for favor, on the ground of bias against the prisoner, a cause of challenge not more specific than the challenge itself. In The People v. Bodine (1 Denio, 281), Coon and M’Colgan were challenged for favor; no cause of challenge assigned, and the omission was not objected to. In 14 Wend. 131, (Rogers v. Rogers) a juror was challenged as not indifferent; no other cause assigned and no objection to the omission. In The Prople v. Mather (4 Wend. 229), Samuel Clark was challenged to the favor; no cause was assigned, and no objection to thé omission. In The Mechanics’ and Farmers’ Bank v. Smith (19 Johns. Rep. p 115), the juror was challenged to the favor; no cause was assigned, and no objection made to the omission. In The People v. Thorn, N. Y. General Sessions, June, 1819, before Cadwallader D. Colden, mayor, P. A. Jay, recorder (4 City Hall Recorder, p. 81), the juror was challenged to the favor and his relationship to one of the parties inquired into, and the evidence not sustaining the intended objection, it was offered to prove other facts to sustain the challenge Emmet contended that the party must be confined to the matter first inquired into and should not be indulged in a fishing voyage. Colden decided, that upon a challenge to the favor, it was not necessary to specify the cause previous to trial; that a logical precision in assigning cause in this species of challenge would in general not be practicable, and in the opinion of the court would be unnecessary.

It would seem, from these cases, that in the opinion of the bench and bar, it has been sufficient merely to challenge to the favor without further or other cause assigned. Vide also 1 Chitty’s Criminal Law, 5 Am. ed. p. 547: “The mode of challenging.”

In Lord Coke’s language, the juror must stand indifferent as ne stands unsworn; and to effect this object, full libertv appears to have been given in modern times to an examination of the condition of the juror’s mind and feelings [the distinctions between opinions and impressions, &c., &c., be.ng more metaphysical often than I am able to understand]; but at all events, an opportunity is to be afforded to ascertain something of the juror’s opinions before trusting him with the life of the prisoner; an opportunity not likely to be abandoned in this large city at least, where counsel, prisoner and' juror meet often for the first time in the court room; the juror acquainted with many of the details of the accusation against the prisoner from the public press, and the prisoner unable, save from the juror himself, to asceitain how far that acquaintance has disqualified the juror for giving him an impartial trial.

My conclusion, therefore, upon the whole case is, 1. That after a juror has been challenged for principal cause, and the challenge tried and disallowed, he may be challenged to the favor, and that the judge below erred in holding otherwise. 2. That it is sufficient to challenge to the favor without assigning other cause than the words of the challenge import, and therefore that the judge should, upon such challenge, have appointed triors and that his refusal to entertain the challenge was error for which, upon a bill of exceptions, the judgment must be reversed, and a venire de novo awarded.

The prisoner has been convicted of an atrocious crime, and it is to be regretted that the decision of this court may enable him to escape the punishment which the law affixes to his of fence. But the rule of law can not be varied to suit particular cases; it must, in a country of laws, be universal in its application.

It is needless to consider the other questions presented by the bill of exceptions.

The judgment pronounced by the Oyer and Terminer should be reversed, and a new trial ordered in the court of Oyer and Terminer, and the prisoner be remanded to the custody of the sheriff to await such new trial, on the indictment against him.

Mitchell, J. —

At the Oyer and Terminer' in this city, Carnal was found guilty of murder. He has brought a writ of error to this court, and the exceptions taken by his counsel to the rulings of the court below have been argued. The bill of exceptions states that after several jurors had been called and challenged to the favor on the part of the prisonei and set aside, Charles Mason was called, and was challenged for principal cause on the part of the prisoner, and the challenge denied by the counsel for the people; the said Charles Mason having been sworn to testify the truth as to his competency to serve as a juror, testified that he had not formed or expressed any opinion as to the guilt or innocence of the accused, whereupon the challenge for principal cause was overruled, and the counsel for the prisoner then challenged said person for favor, but the court thereupon decided that the juror having been challenged for principal cause, and on such challenge examined as to his indifferency, and said cause of challenge having been heard and decided and the juror found indifferent, it was too late to interpose a challenge to the favor; to which decision the counsel for the prisoner then and there duly excepted, and that said person was then sworn as a juror to try the cause.

It is first objected by the district attorney that no cause of challenge to the favor was specified, and that the challenge was therefore a nullity. Such seems to have been deemed the rule, if the court below choose to insist on such a rule, and to require the facts to be stated. But the practice has been different, and it has almost invariably been allowed in this city to the challenge first to interrogate the juror and get the facts from him, and then to argue on the evidence, as it may thus appear, whether he is admissible or not. And in conformity with this practice it is a frequent thing for the court to prescribe certain questions to be put to every juror, which he is to answer, and no specific cause of challenge is stated until these answers are given. Such is the course adopted in the United States courts in Philadelphia on the trials for alleged treason, now pending, and such also was the course of another branch of that court in Boston, within a few months, on similar trials. The same usage probably prevails throughout the state. Such being the case, it would be a surprise on counsel to allow them to proceed on the trial as if the usual waiver of a form was to be allowed, and to make no objection to the omission in the court below, and then for the first time raise the objection in the appellate court.

In this case, before this juror was called, several other jurors (as the bill of exceptions stated), had been called and challenged to the favor on the part of the prisoner and set aside. Beyond any doubt they were challenged in the usual way without assigning any cause until their examination had disclosed their incompetency. It would then be a fraud on the prisoner to allow the trial to commence in such way as to lead his counsel to believe that the formality of assigning specific causes was to be waived, and afterwards, without insisting on this formality in the court below, when this defect could be immediately cured, to make it an objection for the first time in the appellate court, when there would be no opportunity of curing it. Such an injustice would be entirely contrary to the intention, as it would be to the lenient character of the judge who presided at the Oyer and Terminer. In this case the counsel for the prisoner challenged to the favor, and “ the court thereupon decided” that such challenge could not be allowed. This was a declaration to the counsel that however formally they might put their challenge, or whatever might be the cause w'hich they might allege, it would be disallowed. Counsel after that decision could not with propriety insist that they should be allowed to state the cause of challenge. Probably, as the bill of exceptions indicates, the counsel challenged to the favor, and the court thereupon or immediately'on that challenge being put, stated the objection to it, and decided that it could not be made.

Besides this, there is no need in a bill of exceptions of stating more facts than are necessary to show the applicability of the point of law excepted to,- that was the simple question, whether after a challenge for principal cause has been overruled, a challenge to the favor can be allowed. That was the precise point decided, and the precise point excepted to. All the facts that are necessary to present that point are, that there was a challenge for principal cause, and that it was overruled, and that then a challenge to the favor was made. For the purpose of examining the point decided and excepted to, it is entirely unnecessary to know what the causes assigned for the principal challenge were, or what those assigned for favor were, and they may therefore have been omitted in the bill of exceptions as unnecessary, and yet have been stated in the court below. A fair interpretation of the bill of exceptions would lead to a like conclusion. It states that several jurors were called and challenged to the favor; this means that they were duly challenged. It states that Mason was challenged for principal cause; that also certainly means that he was dúly challenged; and after that it states he was challenged for favor; again, also, it can mean nothing else than that he was duly-challenged. In any view of the case, therefore, we are compelled to decide the direct question passed on by the presiding judge of the Oyer and Terminer, and which we know he wishes should not be avoided, and which especially in a case of life or death should not be avoided.

It has been before stated that it has been declared that the court may require the facts constituting the cause of challenge to be stated. If this means anything more than that the facts,.as contradistinguished from the evidence of facts, may be required, it is believed that it would be impracticable in operation. In pleadings at common law, facts are to be so stated that, from the statement made, the court may draw a conclusion as a conclusion of law. To require therefore a challenge for principal cause to state the fact is analogical and reasonable, for then the court is to determine, as a question of law and not of fact, whether the challenge is good or not. But challenges to the favor do not rest on facts, from which the court can raise any inference of law, but on circumstances having the least tendency to make it probable that the juror may be under any bias, and which the triors are then to pass on, not as matter of law, but of fact. Thus a hypothetical opinion expressed by a juror, or his obtaining a discount at a bank which is a party to the suit, or being a fellow servant with a party to the suit, may be submitted to the triors, and they may find either way, and the court will not interfere with their finding." Either of these circumstances may-have others connected with it which may be proved in evidence, and may determine the result one way or the order, which yet it would hardly be proper or practicable to require to be stated as specific causes of challenge. Many of them, too, can only be ascertained (as is almost invariably the case) by the examination of the juror and the disclosures so made by him. If the object be to obtain an impartial jury, no restriction that would forbid the examination of the juror, until the specific cause of challenge should be stated, should be allowed.

The strict rule is laid down and carried out in Mann v. Glenn, in 2 Green’s Rep. 192 (New Jersey). But in our courts the correctness of the judge’s decision in the court below has been uniformly inquired into, although no specific cause of challenge was stated. In 6 Cow. 555, 558, in ex parte Vermilyea, Judge Woodworth says, “The most regular course would be to have stated in the first instance the facts relied on .for cause. It seems, however, that the juror was challenged without specifying the cause, and the question referred to the court.” This, too, was a challenge for principal cause, yet the court examined into the propriety of the decision and ordered a new trial.

In The People v. Freeman (4 Denio, 9), the court say (p. 31), “When a juror is challenged for principal cause, or for favor, the grounds of the challenge should be distinctly stated, for without this the challenge is incomplete, and may be (not must be) “ wholly disregarded by the court. This points out a rule which it is intended should be followed, but the court proceeds in the next page to show “ that challenges are not unfrequently made in general terms, which merely indicate the supposed character of the challenge, as for principal cause, or for favor’’ and so lenient -were the court then, that although the bill of exceptions only stated that the juror was challenged for principal cause, they inferred that cause was alleged corresponding with the evidence from the fact that evidence was given (p 33). On the same principle it may be inferred here that cause was alleged from the decision of the judge, or that he waived the allegation of any cause and resteci his decision on a point which would have made the allegation unnecessary, and impertinent.

This brings us to the question — is it too late to interpose a challenge to the favor after a juror has been challenged for principal cause and the challenge overruled by the court?

General expressions will be found in elementary works which seem to hold the affirmative. Thus it is said in Vin. Abr. (Trials L. D. pl. 20), " He that has divers challenges must take them all at once and the law so requires indifferent trials, that divers challenges are not accounted double,” quoting Co. Lilt. 1-58, a. The same thing is said, probably on the same authority, in the same words, in Trials per Pais (Ed. 1766, p. 197), and in similar, though not the same language in 1 Chitty Cr. Law, 545, and also in Joy on Con. They do not, however, refer to any case which would illustrate their meaning. They do, however, indirectly show what is intended by them. The words used are broad enough to require the party to take his challenge to the array and to the polls at the same time, for they are, “ he that has divers challenges must taken them all at once.” He who has a challenge to the array and to the polls has divers challenges, yet he can not take them both at once, but must first challenge the array, and then the polls. The words also would include peremptory challenges; yet after a challenge to the polls is taken and found against the party he may peremptorily challenge the juror thus admitted. The rule therefore, is subject to qualification, and its qualification is shadowed forth in the latter part of it, when it says, “ divers challenges are not accounted double.” It is no objection that more than one sufficient cause of challenge is stated; that is not accounted double pleading. But if one should challenge for principal cause, and then set forth one sufficient principal cause, as that the juror was under lawful age, and added any number of good causes of challenge to the favor, that could be imagined', the last would hardly be subject to the o’bjection of being double, for they would constitute no cause of objection to the juror on the only question before the court, which would be -whether the challenge for principal cause was sustained. These certainly would not sustain that issue.

If then two classes of objection were united, the court would be without the power of passing on those to the favor. It could not say whether they were sufficient challenges to the favor or not — for that is a.question of fact for the triors to decide, and not of law for a court to decide. Certainly there is no rule of law requiring a party to present an objection to a tribunal which can not pass on it.

The rule therefore intended by these elementary books must be, that “ a party must prefer all his challenges of the same nature and triable by the same forum, at once. (Ch. J. Hornblower in Mann v. Glover, 2 Green, 196, 202.)

The party must show whether his challenge is for principal cause or for favor, that the court may know whether it is to pass on the question, or submit it to triors. He may have reason to believe that he has both grounds of objection — he should not lose either, as the law (in the words of the rule) so requireth indifferent trials.” To obtain the benefit of both, he must be allowed to present each to the tribunal appointed by law to pass on it — the matter of principal cause to the court, and if that be found against him, then the matter for favor which the court could not have passed upon (or which if it had been alleged as principal cause, it must have been overruled as not of that character), to the triors appointed by law, or, if the parties choose, to the judge'to determine, not as a principal cause but as to the favor.

A challenge might be taken as for principal cause, the evidence might show that it was not of that character, but that it clearly was sufficient to be submitted to triors. The judge would be bound to overrule it, because it did not amount to a principal cause, but for that reason must the juror, whom the triors would probably reject, be admitted? All that the judge would have decided would be that the principal cause was not sustained, he would not have passed on the question whether the juror might not still be biassed, or whether triors might not be justified in excluding him*. If the question therefore, wcs submitted to triors on the same evidence, it would not be on appeal from the judge to them. The.judge might well say to them, that he was right in his decision, and yet that they might probably exclude the juror. Thus if, as in the case o.f The People v. Mather (4 Wend. 235), a juror should testify that he was a partner of the defendant’s brother, that his partner was rich, and he poor, he contributing only his labor to the firm, that he resided with his partner, that he had read newspaper accounts of a similar trial, but had no fixed opinion of the guilt or innocence of the defendant — the court might be bound to overrule a challenge for principal cause and yet be disposed, if established for the triors, to reject the juror for favor. In the one case the decision is that the law, under the facts proved, holds the juror not to be necessarily incompetent; in the other, that there is such probable cause of bias that he ought to be rejected.

From the very nature of the challenges, it might be interred that the one .might be allowed after the other had been disallowed. For the challenge to the ’ favor is a supposition that the bias or partiality to be proved is not such as would be in law a ground for a principal challenge. This was fully shown in the case of The People v. Bodine. (1 Denio, 281.)

The practice in our courts so far as the reports show, has been in conformity with these views. In The People v. Mather (4 Wend. 229, 232, 234), Clark, a juror was challenged for principal cause, and admitted by the judges; he was then challenged for favor, and triors appointed, and was rejected by them. No one intimated that there was any irregularity -in this; and this case is quoted by Ch. J. Hornblower in 2 Green. Rep. 205, as showing that after the court has decided certain matters not to be sufficient to sustain a principal challenge, the’party may submit the same evidence to triors in support of a challenge to the favor.” The same course was taken without any intimation from any question that it was irregular in The People v. Honeymann (D Benio, 122). Roberts was challenged for principal cause admitted by the court, who rejected evidence offered to show impressions made on the juror’s'mind as not amounting to principal cause, although proper on a challenge to the favor, and he was then challenged for favor and the jurors also admitted him. In The People v. Freeman (4 Denio, 9), two jurors were challenged for principal cause and admitted by the court They were then challenged for favor, and the court charged the triors as to the law and exceptions were taken to that charge; these exceptions were argued in the supreme court and were held to have been well taken, and on that account partly a new trial was ordered. If in such a case the prisoner had no right to a challenge to the favor, an error in the charge of the judge could have done him no harm in law; but no such objection was raised by the attorney general or his learned associate in this case as may be inferred from the fact that none such is returned by the court in an elaborate opinion which seems to have been intended to meet every objection. (See p. 34 and p. 15.)

The same principle is also contained in the elementary works, from which the general rule has been extracted. ■ It is said in Trials per Pais (p. 189), “ If a man challenges a juror for non-sufficiency of freehold, and this is adjudged against him, yet he may challenge for favor, and this shall be tried.” The same is also stated in Vin. Abr. ( Trial, L. d. pi. 3). This single illustration establishes the rule — nonsufficiency of freehold is a challenge for principal cause and is to be “ adjudged ” by the court; but still after this is so adjudged the party may challenge for favor, and this shall be “tried” by triors — another forum, which could not pass on the first challenge; as the first forum, the court, could not on the last.

Authority, the practice of the court and principle seem all to concur in allowing the prisoner first to challenge for principal cause and have that “ adjudged,” by the court, and then tc challenge for favor and have that “ tried ” by triors — the law so ” anxiously “ requireth indifferent trials.

It is perhaps necessary, in order to prevent misapprehension in future cases to notice the mode in which the exceptions were taken to the judge’s charge. Five different propositions were submitted by the counsel for the prisoner, and the judge was requested to charge accordingly. After his charge was given, it is stated that he refused to charge the five propositions, except as in his charge: to which decision and refusal the counsel for the prisoner excepted. The judge had charged on the fourth proposition substantially as requested; as to the third, there was not a word of evidence to sustain it; the fifth was such every day doctrine that every juror knows it, and that the judge could not by any possibility have refused to charge it if his attention had been drawn to the fact that it was one of the requests, and that he had not stated it in his charge. After the charge, counsel should in fairness have pointed out to the court in what particulars the charge failed to comply with their request, and it might have been that they would not have been considered as having placed their finger on the point excepted to with sufficient distinctness to enable the court to perceive it. If an exception is taken so indistinctly that the court below could not readily perceive the exact point of the objection, the appellate court will disregard it.

The judgment should be reversed and a new trial had in thi court of Oyer and Terminer.

Judgment of Oyer and Terminer reversed and new trial or dered


source: Caselaw Access Project

author: Barculo, J., —

license: Public Domain

text:
    Supreme Court. Kings General Term,
    October, 1851.

      Morse, Barculo and Brown, Justices.
    The People vs. Michael Johnson.
    Vhore on a trial for murder, it appeared that the prisoner and the deceased had been engaged in a fight or scuffle m tfie public highway, and the prisoner after knocking down the deceased, took from the stone wall a large stone and, with both hands, threw it upon the head of the deceased so as to break in his skull and cause his death, and the presiding judge charged the jury that if they believed the deceased came to his death by a blow from the stone thrown against him, the case was capable of being regarded as a case of murder, under the second subdivision of the section defining murder, the charge was held to be erroneous and a new trial was granted.
    Where the facts of a case bring it within any of the degrees of manslaughter, it can not fall within any definition of murder.
    Where death is feloniously caused in a cruel and unusual manner, and in the heat of passion, the character of the crime depends on the intent; if done without a design to effect death, it is manslaughter in the second degree; if done W'ith premeditated design, it is murder under the first subdivision of the section defining murder. But if done in the heat of passion, it can not, whatever may have been the design, be classed under the second subdivision of the section defining murder.
    Cases stated in illustration of the class supposed to be covered by the second subdivision of the section defining murder. Per Barculo, J.
    The prisoner was tried on an indictment for the murder of Daniel Kane, at the Westchester Oyer and Terminer, in November, 1850, Justice McCoun, presiding.
    The evidence showed that the prisoner and Kane on the fourth day of July, 1850, while both were intoxicated, were seen alone engaged in a fight or scuffle in the public highway; that the prisoner knocked Kane down and took, from the stone wall near by, a large stone, which he threw upon Kane’s head ivith so much violence as to break in his skull and produce death.
    The presiding judge, among other things, charged the jury that if they believed that Kane came to his death by a blow from the stone thrown against him, the case was capable of being regarded as a case of murder under the second subdivision of the section of the statute defining murder, to, which portion of the charge the prisoner by his counsel excepted.
    The presiding judge also charged the jury that the said second subdivision was applicable to a case where one man has overpowered another, and then proceeds to do an act imminently dangerous to that other, and evincing- a depraved mind, regardless of human life, although without premeditated design to effect the death of that other, and although that act was dangerous only to the person killed, to which the prisoner by his counsel also excepted.
    The jury found the prisoner guilty and the cause was removed into this court by certiorari.

      F. Larkin, for the defendant.
    I. The evidence in this case, at most, makes out but a case of manslaughter in the second degree. (2 R. <S'. 3d ed. 750, § 10. 12; Revisers’ 'preliminary note, Manslaughter; 3 R. S. 2d ed, 8ll, and also their note to § 10 of manslaughter.)
    IÍ. The judge erred in charging the jury, that if “ they believed that Kane came to his death by a blow from the stone thrown against him, the case was capable of being regarded as a case of murder under the second subdivision of the section of the statute defining murder.” In order to bring the prisoner under this subdivision of the statute, the act of killing must have been dangerous to others, besides the person killed. This subdivision of the section is not applicable to the case of the prisoner, but was enacted to reach another class of cases. (2 R. S. 3d ed. 746, § 5; Revisers’ note to this section, 3 R. S. 2d ed. 809 [3] Foster, 256, id. 261: 1 Hale, 475; 4 Black. Com. 200; 1 Hawk, ch. 29, § 12; id. ch. 31. §61; 1 East, 231, § 18; The People v. White, 24 Wend. 520; The People v.Enoch, 13 Wend. 159; Barbour Cr. L. 27.)
    III. This part of the judge’s charge was too restricted; it narrowed down the inquiry of the jury to the simple fact whether Kane came to his death by a blow from the stone thrown against him,” and if they believed that it was murder under the second subdivision of the section defining murder. This subdivision intends the jury shall find other facts besides the mere act of killing: they must find that the act was imminently dangerous to others, evincing a depraved mind regardless of human life (2 R. S. 3d ed. 746, § 5; Hanford v. Mitchell, 4 Hill, 271.)
    IV. The judge erred in charging the jury, that they could find the prisoner guilty under the second subdivision of the section defining murder, without premeditated design. In order to constitute murder under that second subdivision of the statute, there must be a general premeditated design or malice aforethought, as distinguished “ from a premeditated design to effect the death of the person killed or of any human being.” (2 R S. 3d ed. 746, § 5; East, 231; 1 Hale, 476; 4 Black. Com. 300; 1 Hawk. ch. 27, § 12; id. Ch. 31, § 61; Foster, 261; the Revisers’ note to § 10, of Manslaughter.')

      E. Wells (Dist. Att’y), for the People.
    I. The judge correctly remarked “ that if the jury believed that Kane came to his death by a blow from the stone thrown against him, the case was capable of being regarded as a case of murder under the second subdision of the statute defining murder.”
    The facts being admitted as found, it is for the court to define their legal character and effect, and to decide whether in point of law they constitute the crime of murder, under this branch of the statute. (Oneby’s case, 2d Ld. Raym. 1493; 2 Strange’s Rep. 773; Foster Cr. Law, 255,256^2 R. S. 746, § 5 sub. 2,3 ed.)

    II. The second and third exceptions to the judge’s charge, are substantially the same matters and may be considered together.
    It is not necessary that premeditated design to take life should exist nor that the act producing the death should endanger any other than the person killed, in order to constitute murder under the second subdivision of §5 of the statute; provided the act be such as is immediately dangerous to the person killed, and evinces a depraved mind regardless of human life. 1. The case of murder with premeditated design, is embraced in the first branch of the section, and is excluded from the second branch, or at most is rendered immaterial. The latter branch was intended to include the cases at common law, of murder with implied ^malice, as distinguished from those committed with a settled determination and formed design. (2 R. S. 746, § 5; 4 Black. Com. 199; Wharton's Crim. Law, 225-6, citing U. S. v. Cornell, 2 Mason Rep. 91; Foster Cr. Law, 256 — 7; 1 East P. C. 214,215; Revisers’ Motes, vol. 4, p. 3, of this act; 1 Hale P. C. 449, note 2, Am. ed. 1847; 1 Russell on Cr. 483, ed. of 1841; White’s case, 24 Wend. 581, per Wager, Senator-, Rector’s case, 19 Wend. 606-7.) 2. It is not necessary that the act of killing should endanger any other than the person killed, to make it murder under this subdivision of the statute. A different construction would exclude all the cases of murder at common law, with implied malice (and where the person killing was not engaged in the commission of a felony) from the grade of murder under our statute. Such is manifestly not the intention of the law. (Revisers’ Motes, 4 vol. p. 3 of this act, note; 2 R. S. 875, § 11; People v. White, 24 Wend. 534, per Wal-worth, J.)

    III. This case as it stands on the evidence disclosed in the bill of exceptions, does not properly fall under the head of manslaughter in the second degree, as defined by the statute.
    The killing being proved, it is ■ presumed by the law to be murder, and the circumstances which would reduce it to the milder degree of manslaughter, must be affirmatively shown by the prisoner. No such evidence appears in this case. (2 R. S. 750, § 10, 3d ed.; Foster, 255, citing 2 Ld. Raym. 1993; Stra. 773; 1 East P. C. 224, § 12; Foster, 255.)
   By the Court,

Barculo, J., —

We think the learned justice who presided at the Oyer and Terminer erred in charging the jury that if they believed “ that Kane came to his death by a blow from the stone thrown against him, the case was capable of being regarded as a case of murder under the 2d subdivision of the section of the statute defining murder.” He was probably led into the mistake by the remarks of the chancellor in the case of The People v. Enoch, 13 Wend. 159, and of Justice Bronson in The v. People Rector, 19 Wend. 606. It would be with extreme reluctance that we could be constrained to dissent from the reasoning of those eminent jurists. But we think that our decision can stand consistent with those authorities, when it is considered that the ingredient of passion, which did not exist in those cases, is the controlling and distinguishing feature .of the present case; and as the life of a human being is involved in the decision, we will proceed briefly to state the grounds of our conclusion that the jury- may have been misled by the remarks of the learned justice at the Oyer and Terminer.

It is quite obvious that the revisers in the first chapter relating to “ crimes and their punishment,” intended to present a perfect system in which every grade of homicide should be distinctly and accurately classed. They state in their notes that, It has been supposed that there was nothing so much wanted in the criminal law, as a settled line of distinction between murder and manslaughter which are now so nearly connected, and run into each other so much, that courts and juries often mistake, and a lamentable uncertainty prevails, which operates as well to screen the guilty as to expose the innocent.” This evil they have remedied hy a careful and judicious classification, so complete and perfect, that upon an ascertained state of facts, every homicide can be reduced to its appropriate degrees, and while it falls clearly within one class can not be brought within any other. The authors of this statute, unlike some modern law givers, understood the precise force and effect of the language used; and as a skillful surveyor makes his work meet so that his map covers the whole ground, neither more nor less, so they have included in their system every species of homicide known to the law, each degree standing by itself and occupying its own peculiar ground.

This principle, we apprehend, has not always been kept in view, even by our courts, in giving construction to some of the sections. It seems to have been supposed in some of the cases that, upon a certain state of facts, a case might fall indifferently within two or more degrees of homicide. We suppose that this can never happen — that if the facts bimg the case within any degree of manslaughter -it can not also fall within any definition of murder. And if a case should arise which should seem to run into the two offences, the true rule of construction requires us to place it under the head of manslaughter. This principle we deduce from the statute itself. It commences by declaring that the killing of a human being without authority of law “ is either murder, manslaughter or excusable or justifiable homicide according to the facts and circumstances of each case.” “ Such killing, unless it be manslaughter or -excusable or justifiable homicide, as hereinafter provided, shall be murder in the following cases:

1. When perpetrated from a premeditated design to effect the death of the person killed or of any human being;

2. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual;

3. When perpetrated without any design to effect death by a person engaged in the commission of a felony.”

Thus it appears that by the terms of the statute, the killing of a human being in three specified cases is murder, unless it falls within some of the inferior classes of homicide; from which we deduce the inference that if a case comes within any degree of manslaughter, it can not be deemed murder, although it is accompanied by some of the circumstances which make up the latter crime.

Now, in the case before us, the prominent and undisputed facts show, that the prisoner and Kane, both intoxicated, on the 4th of July last, were seen alone engaged in a scuffle or fight, in the public highway; that the prisoner knocked Kane down, and stepped to the stone wall and took from it a large stone and raised it with both hands and threw it upon Kane’s head, with such force as to crush his skull and produce his death.

The first idea which arises from this statement of facts to my mind is, that this was the killing of a human being in a cruel and unusual manner; and that there is some probability that it was done in a heat of passion. If this be so, then the character of the crime depends upon the intent. If it was done “ without a design to effect death,” it is plainly and clearly manslaughter in the second degree within the 10th section of title II. If, however, it was done with “ premeditated design,” it is murder under the first subdivision above cited of sec. 5 of title I. But it can not, whatever may have been the design, be classed under the second subdivision of that section, if it was done in a heat of passion. This last essential element upon which the case revolved between murder under the first subdivision, and manslaughter in the second degree seems to have been overlooked on the trial. The judge should have directed the attention of the jury to the tenth section of the act in relation to manslaughter, and instructed them that the prisoner should be convicted under that section, if they believed that the killing was in a heat of passion, and without'a design to effect death; and that if it Avas done with premeditated design, whether formed at the time or before, he was guilty of murder under the first subdivision. Instead of this, the attention of the jury was directed particularly'to the second subdivision and they were advised that the facts of the case authorized a conviction for murder under that section.

We suppose that an erroneous impression may thus have been produced upon the minds of the jury. We consider the second subdivision wholly inapplicable to a case where there is' reason to believe that the killing was in the heat of passion, for such killing never was murder at the common law, and the revisers did not intend to increase the cases of murder. That subdivision is applicable to numerous cases of murder known to the common law, where malice was implied. It would apply to the case of a man shooting into a crowd, or throwing missiles from a house or wall into the public streets of a city, without regard to the lives of those who might be exposed. It may also apply to the case where but one person is exposed, and even where the blow is aimed at the person. This appears by the case of Rector, if the fatal, blow was given not in the heat of passion, which seems to have been assumed by the counsel and the court. So if the prisoner had found Kane sleeping by the stone wall and had taken the stone in mere wantonness and let it fall upon him without designing to kill, he would properly have been convicted of murder under the second subdivision. But the law has respect to the infirmity of human passion, and if this blow was the result of the excitement of a fight, it falls within another section. This construction preserves the analogies of the common law: for in the English courts it has been held that, when, after mutual blows between the prisoner and the deceased, the prisoner knocked down the deceased, and after he was upon the ground stamped upon his stomach and belly with great force, it was manslaughter only. (Russ & Ry. C. C. 166.)

The conviction must be reversed and the case remitted to the court of Oyer and Terminer in and for the county of West-chester, with directions to award a venire de novo.

Conviction reversed.

         The doctrine of this decision is fully sustained in the case of the People v. Darry, decided by the court of appeals at March term I8Í4, in which the second subdivision of the section defining murder is held to be inapplicable to a case of personal combat between two persons, and by which the dicta holding a contrary doctrine are overruled.


text:
    New York Oyer and Terminer.
    November, 1851.

      Edmonds, Justice, presiding.
    The People vs. Otto Grunzig.
    Where, on a trial for murder by poisoning, the deceased, on the third day of her illness, said to her female attendant that she expected to die because she was poisoned and also expressed a similar opinion at a subsequent time, and at no time expressed an opinion that she should recover, her declarations, made after the third day of her illness down to the time of her death on the twelfth day of her illness, were received as evidence, although it did not appear that either of her attending physicians had told her she was going to die and although it appeared that one of the physicians, not understanding the cause of her illness, had spoken to her encouragingly of her prospect of recovery.
    The prisoner was tried and convicted of the murder of his wife Victorine, by poisoning her with arsenic.
    On the trial, it appeared in evidence that the deceased, in company with the prisoner (from whom she had previously separated), returned from the country on Tuesday afternoon the 31st of July; that they were together that night, and on the ensuing morning the deceased was attacked with violent vomiting and other symptoms usually accompanying poisoning, with arsenic. She continued in nearly the same state,, occasionally being slightly relieved, until the morning of 12th August, when she died. During her sickness she was attended by a female neighbor in the day time, the prisoner remaining with her every night, and she also received occasional visits from two physicians. The first physician discontinued his visits on the Tuesday following her first attack, and the second physician commenced on the next day, being the eighth day of her illness. The second physician did not apprehend the cause of her disease; on visiting her on Thursday preceding her death, he found her better; in her own language, “ I feel better,” said she; “I do not now vomit; I now begin to have my monthlies.” This he thought a favorable symptom and so informed her. On visiting her on Sunday he found her in a dying condition, and on Monday morning about two o’clock, she died.

      With a view to giving in evidence the declarations of deceased as well before as after the visits of the second physician, the female attendant of deceased was examined and testified as follows:

      By District Attorney. — Q.—How many days was Mrs. Grun-zig sick altogether]
    A. — Twelve days.
    • Q. — Did you visit deceased every day from her first sickness until her death]

      A. — Yes, sir.
    Q. — How often each day]

      A. — I would only quit her to get my meals.

      Q. — At any time during those visits did she express her fears of dying]

      A. — She said she expected to die because she thought she was poisoned.
    Q. — When did she first express this opinion as to death]

      A. — I think the third day after her first sickness; she was very sick but had her senses; she was very bad.
    Q. — After this did deceased at any time express any hopes of getting well]

      A. — She never told me she expected to live]

      By Court. Q. — When was this]

      A. — She was taken sick on Wednesday, and on Saturday she first told me.
    Q. — Did her condition improve at all]

      A. — From bad it went to worse.

      By Counsel for Prisoner. Q — Did any doctor attend her, and what did he say]

      A. — When Doctor -Le Grand came (the second physician) on his first visit he said he thought he could cure her. The next day she was better; the day after she was worse; the 'next day I found her in a passion. The doctor, after deceased had given herself up, gave her hopes; deceased said she expected to die at 8 A. M., and at half-past 12 P. M. the doctor came; from 9 to 11 A. M. that day her mind wandered; the doctor never told her she was going to die.

      Upon this testimony the district attorney offered in evidence the declarations of deceased subsequent to the third day of her illness, as well before as after the visits of the second physician, and cited Rex v. Moseley (1 Moody's Crown Cases, 98.) After argument, the court permitted the declarations of deceased to be given in evidence. Prisoner’s counsel excepted.
    The prisoner was convicted and sentenced to be executed.
   The case was submitted by the governor to the judges of the Court of Appeals for advisement, and the following opinion was delivered:

Albany, 21st January, 1852.

To II:»' Excellency, Washington Hunt:

Sir — Your letter of yesterday, with the minutes of trial and other papers in the case of Otto Grunzig, has been received and considered. After a careful examination of the minutes of the trial, we are unable to say that the evidence objected to was improperly admitted, or that the prisoner was improperly convicted, by reason of any error committed by the judge or the jury. On the contrary, although we think the declarations of the deceased to which exception was taken were entitled to no great weight with the jury, we are of the opinion that the judge would have erred in excluding them from their consider* ation We have the honor to be, with great respect, youi obedient servants, ?

A. Gardiner, F. G. Jewett, Charles H. Ruggles, Alexander S Johnson, J. W. Edmonds, M. Watson, P. Gridley.

An application was subsequently made to Mr. Justice Harris for an allowance of a writ of error, which was argued by Mr Blunt, district attorney, for the people, and H. L. Clinton, foi the prisoner, and after full advisement, denied by the judge

The prisoner was executed.


author: Marvin, J. —

text:
    Supreme Court. Erie General Term,
    November, 1851.

      Tag-gart, Marvin and Hoyt, Justices.
    The People vs. Hiram Knickerbocker.
    Where, on a criminal trial, a person is drawn as a juror and challenged to the favor,.and called as a witness in support of the challenge to prove a bias growing out of what he had heard or read on the subject, it is proper on his cross-examination, to ask him his opinion as to the character and extent of the supposed bias and whether he thinks it would influence him after hearing the evidence.
    Where, on the trial of a challenge to the favor, improper evidence is received and the triors find the juror indifferent, and he is then challenged peremptorily, and it appears the prisoner had not exhausted all his peremptory challenges when the panel was completed, the prisoner can not'afterwards avail himself of exceptions taken to the admission of such improper evidence before the triors.
    To entitle the prosecution, on a trial for murder, to introduce evidence of the dying declarations of the deceased, it must appear by the preliminary evidence, that the declarant knew, or believed, his injury was mortal and that death was rapidly approaching. This may be shown by the expressions and conduct Of the deceased, or by other satisfactory evidence.
    After the introduction of the proper preliminary evidence, the prosecution is entitled to show such dying declarations, notwithstanding there may be other witnesses by whose testimony the same facts might be proved, which are sought to be established by such dying declarations.
    At the Erie Oyer and Terminer held in June, 1851, Justice Parker presiding, Hiram Knickerbocker was tried upon an indictment for the murder of Karl Harkner and convicted. Exceptions were taken to decisions made upon the trial, which were brought before this court for review. The facts appear sufficiently in the opinion of the court.

      J. Verplanclc, for the prisoner.

      Ch. H. S. Williams (district attorney), for the people
   By the Court,

Marvin, J. —

John Koch'J was called as a juror and was, by the prisoner, challenged to the favor. Triors were appointed and Koch was examined as a witness in support of the challenge. He stated that from what he had heard and read about the murder of Harkner, he had formed an opinion rather against the prisoner. On his cross-examination he stated: I have now no opinion of his guilt or innocence which would influence my mind after hearing the evidence. This was objected to on the ground that the conjectures or opinions of the witness as to the way he could act as a juror, upon the evidence, were improper. The objection was overruled and the prisoner excepted. The witness further stated, “ I could take the evidence and find accordingly. The opinion I formed was based on the supposition that the newspaper account was true. I have no opinion whether it was true.” The district attorney inquired, have you any opinion which it would require evidence to remove? This was objected to as calling for the opinion of .the witness. The objection was overruled and the prisoner excepted. The witness answered I think not. On being reexamined by the prisoner’s counsel he stated, “ I said and say that from what I read I thought the prisoner guilty; if the evidence should be as I read, I think him guilty. Question by the court — State whether you could try this man upon the evidence without bias? This question was objected to as calling for the opinion of the witness; the objection was overruled and the prisoner excepted; the witness answered, I think I could. The triors found the juror indifferent and he was then peremptorily challenged by the prisoner. The challenge was to the favor, and the issue before the triors was, whether the juror was indifferent between the people and the prisoner, and the question now is, was improper evidence admitted upon that issue? Could the witness under the circumstances give his opinion as to his ability to try the main issue upon the evidence without bias?

In Lohman v. The People (1 Com. R. 384), Judge Gardiner, in delivering the opinion of the court of appeals, says, “ Upon an issue of this kind from the nature of the facts to be established, the opinion of the juror derived from his own consciousness, was relevant, competent and primary evidence.” He says, in that case, the effect of the evidence was, to elicit an opinion as to the strength of the impression to which he had previously testified, and whether he was conscious of the ability to render a verdict according to the evidence, notwithstanding. If the juror answered in the affirmative, it would have been a declaration that he possessed such ability. This would be but an opinion, but one founded upon his own consciousness, and so far entitled to the consideration of the triors, although' by no means conclusive upon them.” He adds, “ The question then was equivalent to asking the juror, whether he felt or was conscious that he could render an impartial verdict, notwithstanding all he had heard or read.” The decision in Lohman’s case seems to be an authority in point in the present case.

There is also another answer to these exceptions. After the triors had found the juror indifferent, the prisoner challenged him peremptorily. He did not sit as one of the jurors upon the trial of the main issue. The prisoner had not exhausted his peremptory challenges when the panel was completed. He can not now avail himself of the exceptions taken to decisions upon the trial of the collateral issue raised upon the challenge. (Freeman v. The People, 4 Denio, 31; People v. Bodine, 1 Denio, 300.)

The people proved that Harkner died, on the 23d day of January about 8 o’clock in the morning, and they gave evidence tending to show that he died from the effect of a pistol shot; and that the prisoner and one Hall were together at the place where Harkner received the wound on the evening of Tuesday, the 21st January, and that the prisoner then had on a light colored coat and Hall a dark one; and that the prisoner had, on the same evening, stolen a watch from Harkner; also that the man with the dark coat, had a pistol in his hand and put it in his pocket immediately after the report of the pistol by the discharge of which Harkner was wounded. Harkner was taken home covered with blood and apparently dead. On being placed upon a bed, he made signs and talked in a whisper. He said, one arm and one leg were much like death, and he would rather die than remain in pain. His wife told him she hoped he would not leave her, and he told her she had a child and she should console herself with that. He did not say directly that he thought he should die. The attending surgeon testified that Harkner was very weak and could only speak a little at a time, that he was paralyzed on one side, that he could faintly answer on Wednesday night, that he endeavored to console him, but he would not be consoled, but said he would die, but did not say when. He said he could not get well, he must die.

The people offered in evidence the declarations of Harkner made the evening before his death, as to the person who killed him. The prisoner’s counsel objected, the objection was overruled and an exception taken. The witness testified that he said to Harkner the evening before his death, I guess you will get over it again;” Harkner replied, “ I never can get over it, I can’t live.” On being asked who shot him, who hurt him, he said the man who stole his watch; that the man with the white coat on shot him, and the man with the dark coat on stabbed him. About 12 o’clock the same night, in answer to a question, put by his wife, he spoke about dying. The objection to the declarations of deceased, was, that it did not appear, his statements were made under the belief or impression of immediate dissolution, or under the belief that he would die.

After a careful examination of this case as disclosed in the bill of exceptions, I am of the opinion that the evidence as to the dying declaration of Harkner was properly admitted. The principle upon which this evidence is received in trials for homicide, as stated by Eyre, C. B., is, that the declarations were made in extremity, when the party is at the point of death and -when every hope of this world is gone, when every motive of falsehood is silenced, and the mind is induced, by the most powerful considerations, to speak the truth. A situation so solemn and so awful is considered, by the law, as creating an obligation equal to that which is imposed by an oath administered in court. (Roscoes’s Cr. Ev. 7.)

The rule has been applied in a great variety of cases, presenting different circumstances. When the preliminary evidence has not been satisfactory to show that the declarant knew or believed that his injury was mortal and that death was rapidly approaching, the evidence of the declarations has been rejected; or when from the evidence it appeared that the party entertained hopos of recovery, or it was left doubtful whether he did not entertain suGh hopes, the evidence has been rejected. If we test the present case by any of the rules that have been established, the evidence was properly admitted. The declarations were certainly made in extremity, and when the decla-rant was at the point of death. But they are only admissible when the party making them, knows or thinks he is in a dying state. Positive evidence, however, of that knowledge or belief, is not required. It may be inferred from the general conduct or deportment of the party, nor is it necessary to prove expressions of apprehension of immediate danger, if it be clear that the party does not expect to survive the injury. (Ros. Cr. Ev. 29, 30, and cases there cited.)

If we consider Harkner’s real, condition, we find nothing in it upon which to build a hope; his conduct and declarations furnish no evidence that he entertained any hope of recovery; on the contrary, they furnish very strong evidence that he did not believe or-entertain any hope that his recovery was possible. He appears to have been fully conscious of the extremity to which he was brought, and that he must die and could not recover. (2 Russ, on Crimes, 682 to 687, and cases cited.) The evidence shows, I think, that all hope of this world was gone He rejected consolation, and consoled his wife.

It was said upon the argument, that the rule admitting dying declarations, is founded in necessity, and that when other evidence of the facts to which the declarations state, can be, or is given, the necessity does not exist, and that therefore the declarations should not be received.

It appears, in the present case, that it was proved on the part of the people, that the man with the dark coat had a pistol in his hand and put it in his pocket immediately after the report of the pistol wounding Harkner. This is the entire statement of this evidence in the bill of exceptions. The declarations of Harkner related to the shooting and stabbing, and he designated the man in the light colored coat (the prisoner), as the man who shot him. It is argued that as the people gave evidence in relation to the shooting, the declarations of Harkner should not have been received. Roscoe, in his Criminal Evidence, says:

Evidence of dying declarations has been considered, by some, to be admissible, from necessity, since it often happens that there is no third person present to be an eye witness to the fact and the usual witness in other felonies, viz., the party injured, is got rid of. The rule, in its origin, may have been adopted from necessity, but it is now well established and rests upon principle, which do not exclude the declarations, although the fact declared may be susceptible of proof from other evidence.”

The dying declarations are received as evidence in the cause, and if there are living witnesses who can give evidence touching the same facts, they may be called and examined, and the whole evidence may be submitted to the jury. We have not been referred to any case where this question has been raised. In this case the facts, as stated by Harkner, had not been proved. His statement was that the man in the light coat shot him, and the man in the dark coat stabbed him. The witness, who had been examined, stated that the man in the dark coat had a pistol immediately after the report. It does not appear from the evidence, whether the prisoner had a pistol or not, or which of the two persons shot. The evidence proved a circumstance from which an inference might he drawn, that the man in the dark coat discharged the pistol. Harkner said it was the man in the light coat that shot him, and all this evidence was proper for the jury.

The objection to the evidence of the dying declarations was not put, at the trial, upon the ground that living witnesses had spoken or could speak to the facts, to which the’ declarations related, but upon the ground that it did not appear that the statements were made under the belief or impression of immediate dissolution, or under the belief that the declarant would die.

I have, however, briefly considered the objection .now taken, and in my opinion it is not well founded. No error was committed upon the trial, and a new trial should be denied.

New trial denied.


author: Parkek, J. —

text:
    Supreme Court. Albany General Term,
    December, 1851.

      Harris, Parker and Wright, Justices.
    The People vs. Newton Gay.
    The fact that a witness admits, on his cross-examination, that he has been prosecuted and bound over, on a charge of perjury, will not authorize the party calling the witness to give evidence of the general good character of the witness.
    A party can only give evidence of the good character of his witness, when impeaching witnesses have been first called on the other side.
    By impeaching witnesses, in such case, is meant only such as have spoken to general character, or to character for truth.
    This was a writ of error to the Columbia Oyer and Terminer In October, 1851, the defendant was tried in that court 'on an indictment for rape, alleged to have been committed on the person of Sarah Pilling, and found guilty and sentenced to imprisonment in the state prison at Sing Sing for the term of ten .years. On the trial, many witnesses were called and examined on both sides. The defendant then called and examined John W. Wood, who gave evidence material in the cause. On his cross-examination in behalf of the prosecution, the witness admitted and testified that he had been prosecuted at Coxsackie, before Esq. Heermance, in a criminal suit, on a charge of perjury, and was committed for trial. That the perjury charged was alleged to have been committed in a suit tried at Athens on the 26th day of September last, in favor of Newton Gay against Lewis and George Raymond, who made the complaint against witness. That George Gay, a brother of Newton Gay, was also committed. That witness had also been sworn as a witness in another suit for George Gay against Patrick Kernan. That the binding oyer of witness on the charg-e of perjury was after the examination of said Pilling, the complainant, had taken place on the charge against Newton Gay for rape.
    The counsel for the defendant then offered to prove the general good character of the witness, Wood, for truth and veracity, which was objected to by the counsel for the people, and the objection sustained by the court, to which the counsel for the defendant excepted. '■

      K. Miller, for defendant.
    The court erred in excluding the evidence offered by the defendant, of the good character of Wood for truth and veracity. (1'he People v. Rector, 19 Wend. 569; The People v. Carter, 2 Hill, 317.) The facts elicited upon the cross-examination of this witness had a direct tendency to impeach his credibility.

      J. H. Reynolds, for the people.
    I. The evidence of the good character of the witness Wood was properly excluded. 1. Because the evidence that he had been accused of perjury in another case did not affect his general moral character. Every man is presumed innocent. (Jackson v. Osborn, 2 Wood, 555; 1 Phil. Ev. 229,293; Cow. fy Hill Motes, 771: 8 Car. Sf Payne, 726.) 2. If he had admitted himself guilty of the crime, the case would have been different. His general moral character would then have been reached. 3. This case is also to be distinguished from the case where a witness on his cross-examination admits his course of life to have been infamous, for that necessarily goes to moral character. 4. The case of The People v. Rector (19 Wend. 569), stands alone and is unsupported by reason or autlority. «Justice Bronson in that case shows the judgment of the majority of the court to have been against the whole current of authority on the law of evidence. The case can not be sustained, and ought not to be followed as a precedent. 5. The supreme court, in The People v. Hulse (3 Hill, 309), substantially overrule The People v. Rector, and the principle of the case of Jloughtalirg
      v, Kelderhouse (2 Barbour, 194) affirmed 1 Cow. R. is directly hostile to Rector’s case and overrules it.
   By the Court,

Parkek, J. —

The only question presented in this case is whether the facts shown by the prosecution on the cross-examination of Wood, authorized the defendant to introduce'witnesses to show Wood’s general good character for truth. It is urged on the part of the defence that the cross-examination of Wrood was an impeachment of his general character which would justify the calling of witnesses to support it.

In the case of The People v. Rector (19 Wend. 569), Gillespie, a witness called in behalf of the prisoner, when cross-examined on the part of the prosecution, admitted that, though he had a wife and children, he had been living for two years in adulterous intercourse with a woman, who was with him at the time of the transaction in question; that he was in the habit of frequenting porter houses at unreasonable hours, had been in no business for two years, but had been living on a small sum previously accumulated, instead of paying his debts with it. The counsel for the prosecution, after proving by two witnesses that Gillespie had, previous to giving his testimony, disavowed all knowledge of the transaction, and contradicting his testimony in other respects, called one Tallman and inquired of him as to the general character of Gillespie for truth and veracity; to which he answered he knew nothing against it, never having heard his character for truth called in question. The counsel for the prisoner then offered to prove the general good character of Gillespie for truth, which was excluded. The supreme court held, Justice Bronson dissenting, that such evidence should have been received. This decision was placed upon the ground that the facts shown by Gillespie, on his cross-examination, were an impeachment of his general moral character; and a majority of the court held that when the general moral character of a witness is impeached, whether by witnesses called for that purpose or on his own cross-examination, it is competent for the party calling him to support him, by evidence of general good character.

In The People v. Carter (2 Hill, 317), a material witness for the prisoner admitted, on his cross-examination by the counsel for the people, that he had been complained of and bound over on a charge of passing counterfeit money. The prisoner’s counsel then offered to prove the witness’ good character for truth, which was rejected by the court. The supreme court, in a per curiam” opinion of. four lines, held that the case came within the principle established in The People v. Rector, and ordered a new trial.

If the decision in The People v. Carter is law, it is undoubtedly controlling in the case under advisement; for the question presented is, in both cases, the same. It will be observed that the law was not at all discussed by the court in The People v. Carter. It was decided on the argument, on the supposition that it was governed by the decision in The People v. Rector. Now, I think a more careful consideration of the case would have satisfied the court that it did not come within the rule laid down in The People v. Rector. In the case of Rector, the witness on his cross-examination testified to and admitted acts of gross immorality. In the case of Carter, the witness on his cross-examination did not admit or testify to any immoral conduct. He only stated that he had been complained of and bound over on a charge of passing counterfeit money. No guilt was established. On the contrary, the law presumed the witness innocent until he was proved to be guilty. The isolated fact that he had been bound over proved nothing against his moral character. Conceding, therefore, that the case of Rector was correctly decided, I think it is plain that the court erred, in the case of Carter, in supposing it was, in principle, like that of Rector.

But I think both these cases have been virtually overruled by the later case of The People v. Hulse (3 Hill, 309.) That was the trial of an indictment for rape. The prisoner attempted to discredit the testimony of the complainant, 1. By showing, on her cross-examination, that her story was improbable in itself; 2d. By disproving some of the facts to which she testified; 3 By evidence that her conduct was inconsistent with the idea of the offence having been committed; and 4. By calling witnesses to show that the account which she had given of the .matter, out of court, did not correspond with her statements under oath. It was held that this was not an attack on the general character of the witness, and therefore evidence of her good character was inadmissible in reply. Justice Corven dissented, and he was the judge who delivered the opinion of the majority of the court m the case of Rector. In dissenting, he says, in substance, that he still holds to the opinion he expressed in The People v. Rector, that evidence of contradictory statements is such an impeachment as to authorize evidence of general character.

It is not necessary in this case to go so far as to question the law in the case of Rector. There the continued immoral conduct of the witness was proved. In the case of Carter, and in the case under consideration, there had only been a charge made of a single moral delinquency, and the presumption of law would be in favor of the witness’s innocence.

But the questions presented in the case of Rector and in the case of Hulse, were in principle the same. In the latter case,' as well as in the former, the improbability of the story, the facts disproved, and the different and contradictory statements of the witness, were evidence of a want of moral character. I think the decision on this point in The People v. Rector, which rested mainly on one or two English nisi prius cases, was a departure from a salutary and well settled principle, and ought not to be sustained. “The general rule,” says Bronson, J., in The People v. Hulse, “ is that a party can only give evidence of good character of his witness, where impeaching witnesses have been first called on the other side. By impeaching witnesses, I mean such as have spoken to general character, or character for truth; and not such as have merely given a different account of the facts, or proved that the witness has made declarations out of court inconsistent with his testimony on the trial. The question of character must be made by the opposite party and not by the one who calls the wdtness.”

The only English case, in w'hich a departure ,has been allowed from this rule, was that of Rex v. Clark. (2 Stark. Rep. 213.) There the prosecutrix admitted that she had, some years before, been twice sent to the house of correction, on charges of having stolen money from her master, and Holroyd, J., admitted evidence to show that her subsequent conduct had been good. This nisi prius case is the one referred to by the writers on the law of evidence, as authority for calling witnesses to general character to sustain a witness attacked on cross-examination. It is like the case of The People v. Rector, and snlike this case and that of the People v. Carter, in one important feature. On the cross-examination, the immorality was established, and not merely shown to have been charged. The witness had been convicted of the offence charged. But it is unlike the case of Rector in another feature equally important: it was only the subsequent conduct which was shown to be good; that is to say, a subsequently acquired good character was allowed to be proved. Whereas, in the case of Rector, the general good character was permitted to be proved, although the witness had admitted his immoral conduct. . The decision in the case of Rector went still further than any which preceded it. But the decision in Rex v. Clark, was not recognized as sound law in the subsequent case of Doe v. Harris. (7 Car & Payn, 330.)

In Jackson v. Walker (4 Esp. R. 50), one of the subscribing witnesses to a will, imputing'fraud to the other two, in procuring the will, and they being dead, witnesses were called to their good character, in order to repel the imputation. And this seeming exception to the general rule was sanctioned in Rowe v. Reed (3 Moore & Payne, 4; S. C. Bing. 435), where similar evidence was received. But it was not supposed that such evidence would have been allowed if the witnesses had been living; and in the case last cited, all the judges placed the decision on the ground, that such evidence was secondary proof, receivable from necessity. And in The Bishop of Durham v. Beaumont (1 Camp. 210), Lord Ellenborough, said that if, in Jackson v. Walker, the witness had been alive, they must have been personally adduced, when their character would have appeared on their cross-examination. These cases, in' mj opinion, have no bearing upon the question under consideration They relate to proof of the good character, not of the witness, but of third persons, who are deceased and can not therefore be called to explain certain facts proved, which tend to their impeachment. And yet these cases, together with that of Rex v. Clark, are those relied upon by Justice Cowen in the conclusion to which he came in The People v. Rector.

In the Bishop of Durham v. Beaumont, Lord Ellenborough refused to admit evidence in the support of the character of a witness, who stood contradicted by another witness. In Dodd v. Norris (3 Camp. 519), which was an action for seducing the plaintiff’s daughter, she was called as a witness for the plaintiff, and was cross-examined at length on the part of the defendant, to show she had been guilty of extreme indelicacy and great levity of conduct. Lord Ellenborough refused to allow the plaintiff to call witnesses in support of her general character, and said she could have an ample opportunity to explain on her reexamination, as far as truth could permit, the facts elicited on her cross-examination. And in the later case of Doe v. Harris before cited, Coleridge, J., refused to permit the defendant’s counsel to call witnesses to prove the good character of a witness, whose moral character had been attempted to be impeached, on his cross-examination. The decisions in the English courts, with the single exception of Rex v. Clark, which I have shown to have been overruled, agree in the general rule that witnesses can only be called to show general good character of a witness, where witnesses have first been called to impeach it.

In Russell v. Coffin (8 Pick. 143), the deposition of a witness taken out of court, was introduced for the purpose of contradicting his evidence in court; and the party who called the vs itness was not permitted to sustain him by evidence of his general good character. Parker, Ch. J., sa d, it had never been decided that such evidence of general good character was admissible, when the witness was contradicted, either by his own declarations or by other witnesses. So in Rogers v. Moore, decided in 1833 (10 Conn. 13), evidence of the general good character of a witness was held to be inadmissible, where his general character had not been impeached, although an attempt had been made to impair his credibility on his cross-examination, to prove facts inconsistent with his testimony, and to show that he had been privy to a fraud in a deed under which the plaintiff claimed title. In giving the opinion of the eourt, Church, J., reviews all the English cases above cited and comes to the same conclusion arrived at in The People v. Hulse.

I think it is fortunate for the administration of justice in this state that the departure from this rule in the case of The People v. Rector has been overruled and the uniformity of the law maintained in The People v. Hulse.

All concede that witnesses ought not to be called to sustain character, until such character is impeached. But it is said that the facts elicited on a cross-examination, showing moral delinquencies, constitute such an impeachment. This can not be, because it is well settled that evidence to discredit a witness must be to his general character and not to specific acts. (Wike v. Lightner, 11 Serg. & Rawle, 198.) It is certain a witness can not be called to prove specific acts by way of impeachment j and there is no more reason for allowing the specific acts proved on the cross-examination to constitute such an impeachment. There is no danger that the witness or the party calling him will suffer injustice by a too willing disclosure, on cross-examination, of discreditable circumstances. The feeling and interest of the witness have naturally an opposite tendency. Such unfavorable circumstances, when proved, do not constitute moral character; they are only an element in it. That they are not regarded as making up moral character, is evident from the fact that a witness can not be called to prove such circumstances by way of impeachment. It is no answer to say they are a part of the moral character, for general character only can be shown.

In a criminal case, evidence of the general bad character of the defendant can not be received until evidence of his general good character has been introduced. This rule is reversed in regard to a witness, who can not be sustained until his general character has been assailed. In both cases, general evidence only can be introduced. In neither case, on either side of the question, can particular acts be shown. In accordance with this general principle, it was held in Gough v. St. John (16 Wend. 646), in an action on the case for a fraudulent representation, that evidence of the good character of the defendant was inadmissible. And in Houghtaling v. Kelderhouse (2 Barb. S. C. R. 194; 1 Corns. 130), it was decided in an action for slander, that the plaintiff could not be permitted to introduce evidence of his good character, in reply to evidence introduced by the defendant tending to prove the truth of the charge.

It would greatly multiply the issues to be tried, and needlessly increase the prolixity of trials, and I think, also, tend to mislead the jury from the more important questions of the case, if general character may be tried on every contradiction between witnesses, or whenever a witness shall admit, on his cross-examination, some previous immoral conduct on his part. Still greater would be the evil, if such general character is to be inquired into in every case where a witness admits on his cross-examination that he has been accused of some offence. If an isolated case of accusation only is an impeachment of general character, calling for evidence in support of it, the presumption of innocence is violated, the law that requires general and not specific evidence is disregarded, and the issues to be tried are increased beyond measure or endurance.

I am satisfied that the true rule and the only safe one is that laid down by Bronson, J., in The People v. Hulse, that a party can only give evidence of the good character of his witness when impeaching witnesses have first been called in, on the other side.

The judgment of the Columbia Oyer and Terminer nr.st therefore be affirmed.

Justice Wright dissented.

      3) The judgment in this case was affirmed by the Court of Appeals. (3 Selden R. 378.)