Allen v. People

The prisoner was tried and convicted, in the general sessions, of grand larceny. ■

In the impanneling of the jury one of them was asked “ if he had formed an opinion as to the general character of the prisoner.” He replied that he had; that “his . general character was bad.” Again, “ that he was biased.” Those admissions rendered the juror incompetent. The prisoner was entitled to a fair trial, before an impartial jury. If one of the jury was prejudiced against him it can hardly be said that he had an impartial trial; or, if he was of opinion that the prisoner’s character was bad, that the latter had an impartial jury. The presumption is that a man is innocent, until found guilty.

*349In this case the juror had, formed an opinion that the prisoner was guilty, and he required evidence to remove that presumption. When objected to, he should have been set aside and his place supplied with one who was not “biased,” or who thought the prisoner’s “character bad.”

The juror was not unbiased. (People V. Bodine, 1 Denio, 305. People v. Freeman, 4 id. 9.)

For these reasons the conviction should be set aside, and a new trial ordered.

Concurring in the opinion of Justice Barnard, it is not necessary for me to give my views upon the other question to which Judge Ingraham refers. I only wish to say that the opinion of Justice Strong, in LoJman’s case, in the Supreme Court, cited by Judge Ingraham on the point discussed by Judge Barnard, cannot be regarded as authority. That case went to the Court of Appeals, (1 Comst. 380,) and Judge Gardiner, speaking of the question put to the juror after he had declared his belief that the prisoner’s general character was bad, as to whether he could render a verdict on the evidence, says: “ The issue to be tried was whether the juror stood indifferent between the parties. This of course depended upon his state of mind. To ascertain this was the object of the examination of both parties. Upon an issue of this kind, from the nature of the fact to be established, the opinion of the juror, derived from his own consciousness, was relevant, competent and primary evidence. If the juror answered in the affirmative, it would have been a declaration that he posessed such ability. That would be but an opinion, but one founded on his own consciousness, and so far entitled to the consideration of the triors, although by no means conclusive upon them. If he had responded in the negative, the answer would, if believed, have been decisive against his competency. For although a man may think himself impartial when he is not, he cannot be a competent *350juror if conscious of an inability to render a verdict without being influenced by previous impressions.”

Here the district attorney chose to, let the matter stand upon the juror’s evidence that he had “ formed an opinion that the prisoner’s character was bad; that he was biased;” without any inquiry as to whether he could disregard that feeling and render a verdict solely upon the testimony. And that being so, Ithink, upon the evidence as it closed, the juror’s answers, in the language of Judge Gardiner, were “decisive against his competency;” and that the prisoner was entitled to have such an instruction given to the triors.

It would be absurd to say that a man is entitled to have an “ indifferent ” jury, if it may be constituted of persons who have formed an opinion against his general character, and are already “biased” against him before the trial commences..

The conviction should be reversed.

(dissenting.) The ground of objection, in this case, as to the juror McDowell, is that he was incompetent, because he had formed an opinion as to the character of the prisoner, and said he was on that account biased.

The juror was challenged to favor. The prisoner’s counsel requested the court to charge the triors, as matters of law, that the juror having stated he had formed a bad opinion of the prisoner’s general character, he was incompetent. This was refused, and the question was submitted to the triors," who found him to be competent.

I am of the opinion that on a challenge to the favor, the court should not instruct the triors as requested by the prisoner’s counsel. It is the duty of the court to submit the question to the triors, and if that is done, they are to pass upon the question whether the challenge 'was sustained. It by no means follows that be*351cause a juror was impressed with a belief of the bad character of the prisoner, he was incompetent to try the question of guilt or innocence. In Freeman v. The People, (4 Denio, 35,) whether a juror was disqualified by the bias he had as to the character of the prisoner, was held to be a question of fact, to be disposed of by the .triors. It would not have been sufficient on a challenge for princpal cause. And the court say: “ It is not a question to be solved by a rule of law, but by the common sense of the triors; and if this has fair play, the difficulty will rarely be found very great. The triors must find that the juror stands impartial and indifferent, or they should reject him. It is the province of the court to say what evidence is admissible on this question of indifference, but its strength and influence in establishing the allegation of favor or bias are for the triors alone to determine.”

In this case the court also say: “ The instruction should have been that this was evidence to be considered by them, and if it convinced them that actual bias existed, the juror ought to be excluded.”

In Costigan v. Cuyler (21 N. Y. Rep. 134) it was held that the decision of the triors upon the evidence would have been final.

In Dauchy v. The People, (22 N. Y. Rep. 147,) "Welles, J., says: “ It is clearly settled by authority that the decision of the triors is final upon the question of fact whether the juror stands indifferent, which is in all cases the question to be decided by the triors. The decision of the court, in admitting or rejecting evidence, is subject to exception. The triors are to receive such evidence as may be laid before them, and a bill of exceptions will not lie to correct any error in their finding.”

In O’Brien v. The People (2 Abb. N. S. 368, 372) it is said : “ The challenge was for favor, the decision of which, as a question of fact, was final.”

In Smith v. Floyd (18 Barb. 522) the juror challenged to *352the favor was examined, and testified that he had formed an opinion as to a custom in a town which formed the subject of the action. The counsel requested the court to charge the triors that the testimony showed the juror not indifferent. This was refused, and an exception taken. The judge says, “this was not a question of law upon which the defendant was entitled to have the instruction of the court, but it was to be referred to the intelligence and good sense of the triors.”

And in The People v. Lohman, (2 Barb. 216,) where the jtiror, on a challenge to favor, stated he had an opinion • unfavorable to the prisoner as to general character, but the triors found against the challenge, Strong, P. J., says: “It is not in general sufficient to justify the triors in setting aside a juror as not indifferent, that he has formed an unfavorable opinion of the character of the accused. If it should be, notorious offenders could not be tried at all.”

My conclusión upon this question is that upon a challenge to the favor, the court must decide as to the admission of evidence to the triors, and any error in this respect may be corrected by exception, but upon the facts the court has no right to decide either that the evidence is sufficient or insufficient to sustain the challenge; but that the duty of the court is to submit all the facts to the triors, who alone are to decide whether or not the challenge should be sustained.

The objection as to the courts of oyer and terminer is not well taken. Whatever .objection there may have been, under the English system, the provision of the Code has relieved the difficulty. The 20th section directs that the courts of oyer and terminer shall be held twice annually, in every county, and as many more terms as the judges shall appoint. The 23d section provides for extra courts to be appointed by the governor, and the 24th section provides for the adjournment of any court to a future time. *353The holding of one branch of the court does not prevent the holding of the regular courts as directed by the statute.

Besides, the objection should have been taken before pleading to the merits. It is not available under the plea of not guilty.

I think the judgment should be affirmed.

blew trial granted.

Ingraham, B. I., and Cardozo and Geo. G. Barnard, Justices.]