6 Cow. 555 | N.Y. Sup. Ct. | 1826
His honor afterwards discussed the questions at large ; and gave his opinion as follows :
The defendants were convicted at a court of oyer and terminer, held in the city of New-York,
If, however, in any given case, the inferior court should erroneously refuse to interfere, it would afford no ground for a certiorari; because the remedy does not apply to, or reach the error sought to be corrected.
If a bill of exceptions would lie in a criminal case, the difficulty would be removed ; but it is well settled that it does not.
With respect to the admission of the jurors, I will confine my observations to the case of Andrew S. Norwood
The court decided that the juror stood indifferent; and that the challenge was not true. He was accordingly sworn and sat on the trial.
On this evidence, two questions arise ; first, whether the challenge forms a part of the record, so as to be the subject of removal by certiorari ? Second, whether the exception to the juror was well taken ?
The first question depends on this ; do the facts constitute a principal cause of challenge ? This arises when there is a manifest presumption of partial^. In that case it excludes the juror ; but a challenge to the favor, where the partiality is not apparent, must be left to the discretion of triers. The facts relied on generally consist of slight circumstances, respecting which, the law has not laid down any certain rule. In such cases the judgment of the triers is conclusive. The question arising on such a challenge, is altogether extrinsic of the record. Evidence may be reviewed in a superior court by demurrer, or bill of exceptions ; but neither applies to evidence in support of a challenge for favor.
The next inquiry is, whether a principal cause of challenge may become parcel of tfye reccfrcL and tinder what
R is iaj(i down ⅛ 3 Bac. Abr. 766, that “if a challenge tic taken, and the other side demur, and it be debated, and the judge overrules it, it is entered upon the original record ; and if at nisi prius, it appears upon the postea what the judge hath done ; but if the judge overruled the challenge upon debate, without a demurrer, then it is proper for a bill of exceptions.” Chitty, 1 vol. Cr. L. 548, recognizes the same doctrine. He refers to Skin. 101, and Hut. 24. Chitty also says, at the same page, that if a demurrer be resolved on, either to the array or to the polls, there is no occasion for those circumstances which must attend a demurrer to a plea, such as the signature of counsel ; but it is good as soon as agreed on at the bar, and the prothonotaries ought of right to enter it on the record. These authorities suppose a principal cause of challenge ; and establish the proposition, that where the facts alleged as cause of challenge, are not disputed, the question is decided summarily by the court. On the argument before, me, the attorney general conceded the law to be, that if the challenge was good for principal cause, and the other party demurred, it became parcel of the record, and might be removed. He contended, however, that this was not a challenge of that description ; that the facts made out a challenge for favor ; and that the judge was substituted in the place of triers by consent of parties ; and consequently that the question was to be viewed in the same, manner as if it had been actually decided by the latter.
If it should turn out that the defendants have not established a principal cause of challenge, the argument is well founded. The real difficulty, if any exists, is, in ascertaining whether the public prosecutor is to be considered as having demurred to the challenge. The proceedings in this stage, were somewhat informal. The more regular course would have been, to have stated, in the first instance, the facts xelied on for cause. The prosecutor would then probably have elected to plead or demur, It seems, however, that the juror was challenged without
It is, however, contended, that this case falls within that part of the doctrine laid down by Chitty and Baconf where it is said, that if the challenge is overruled without demurrer, on being debated, the objection may afterwards be made the subject of a bill of exceptions ; and as no bill was taken, the decision could not be brought before the supreme court, unless by consent. It seems to me, this rule does not apply in criminal cases. Whether the counsel demurs to the challenge, or merely argues that it is not good in law, creates no material distinction. If the distinction was ever entertained in the English courts, it must have been founded on a belief that a bill of exceptions would lie. But if it be a conceded point, that no bill of exceptions will lie, I think it goes far to show that the rule laid down is not applicable to criminal, but civil cases. I have traced the doctrine to its source, by examining the cases cited by Chitty. They are to be found in Skinner, 101, and Hut 24. The case from Skinner, was decided 35 Cha. 2, between the king and the city of Worcester. It was an information in the nature of a quo warranto. The case states, that the counsel for the city of Worcester came with their bill of exceptions ; they challenged the array, because the venire was returned as by both the coroners ; when, in truth, but one of them returned it. They likewise challenged the polls, for want of freehold, w'hieh was overruled. No question was raised, whether a bill of exceptions would lie. Saunders, chief justice, said, if the judge overruled the challenge upon debate, without a demurrer, then ’tis proper for a bill of exceptions. There are several answers to this case. It rvas not strictly a criminal proceeding. Informations at the common law, partook of the nature of a civil remedy, and in modern times, are considered as a civil remedy only. It must, I
In the case of sir Henry Vane, reported in Keling, 15, and 2 St. Tri. 435, 450, 1, 14 Car. 2, a construction is given to the statute ; and it was held by all the judges, that the statute of Westm. 2, c. 31, which gives the bill of exceptions, extends only to civil causes, and not to criminal. Keling states, that the court agreed, the words of the statute are plain as to this point. So also, 1 Keb. 324, where the same case is reported, the judges observe, a bill of exceptions is not wdthin the statute, or ever heard of, the statute not extending to any indictment. This case having been decided before the case in Skinner, it is manifest the court had no reference to criminal proceedings, when speaking of a bill of exceptions, as applicable to a challenge, disposed of without demurrer. As a civil remedy, it may undoubtedly be pursued, if there is no demurrer to the challenge in form ; but even then, in a civil case, its necessity may well be questioned, as will presently be shown. The case then leaves the principle untouched, that where the judge decides the law on a principal challenge, whether arising on demurrer, or by a submission of the question, an entry is made on the record, which may be reviewed.
The decision in Skinner, upon which Chitty and Bacon rest, is an authority to prove there is a remedy, where a good cause of challenge is overruled. It is an admission of this principle. The public prosecutor cannot be compelled to demur. Shall his refusal or omission deprive the accused of a right ? Can the right depend on such a contingency ? I think not. In accordance with this view of the subject, it seems to me the case of Hesketh v. Braddock., (3 Burrows, 1847,) decided on a writ of error, proceeded. The record states that the defendant challenged the array, to which the plaintiff demurred ; the challenge was disallowed. The defendant then, ore tenus, in open
In 3 Wood. Lec. 347, n (i), the form of the record in the case from Burrow is given. The challenge to the polls is thus entered : “ And hereupon the said S. B. ore terms, in open court, challengeth the polls, because, he says, that the jurors are citizens and freemen of the c'ty of Chester ; which said challenge by the court here is disallowed.” Professor Woodeson then states, that the challenge ore terms was omitted in the first engrossment of the record ; that the defendant alleged diminution ; and that it was then inserted by rule. This case sanctions the doctrine contended for by the defendants’ counsel, that the challenge may be removed as parcel of the record, provided it w7as a principal cause of challenge.
The only remaining question is, whether the facts stated by the juror constituted a principal cause of challenge.
It will not be denied, that every man, whether in a civil or criminal case, is entitled to an impartial jury. Though our constitution merely preserves the trial by jury inviolate forever, and does not, in express terms, guarantee an impartial jury ; yet, ex vi termini, it is embraced in its provisions ; as much so, as that the judges shall be impartial men. The same general principle is adopted by the English law. The only question is, as to the application of that principle. Can a juror be impartial or indifferent to the question, who, from a knowledge of the facts, confesses that he has made up his mind that the accused are guilty ? It is a fallacy to suppose such a man stands impar
In the case of the King v. Emonds and others, (4 Barn, and Ald. 470,) chief justice Abbot observes, that expressions used by a juryman, are not a cause of challenge, unless they are to be referred to something of personal ill will towards the party challenging. He relies on the doctrine laid down in the yearbooks, 7 Hen. 6, fol. 25, where Babington,justice, says, “if the juror has said he will pass with the one party, for the knowledge that he has of the matter, and of the truth, he is indifferent , but if he has said so for any affection of the party, he is favorable.” Hawkins, B. 2, ch.43, s. 28, is also referred to. He observes, “ that it hath been allowed a good cause of challenge, that the juror hath declared his opinion before hand, that the party is guilty, or will be hanged, or the like.” Hawkins adds, “yet it hath been adjudged that if it shall appear that the juror made such declaration from his knowledge of the cause,/and not out of any ill will to the party, it is no cause of challenge.” The opinion of the court of king’s bench, in Bam. and Aid. rests on these ancient authorities; it does not profess to consider the soundness of the doctrine advanced. Now, admitting the law had been so applied at an early day, when the prisoner did not possess even the right of producing testimony ; I apprehend that after the lapse of centuries, when the rights of parties are better understood, and have been more accurately defined, it would not be presumption to inquire whether the common law relating to the right off challenge, had not in this instance been misapplied ; or whether it was consistent with the law as laid down by lord Coke, who says, “ the rule of law is, that the juror must stand indifferent as he stands unsworn.” (Co. Litt. 155, b.) It seems to be admitted in some of the old cases, that an opinion formed and expressed, is good cause of challenge. Upon, \vhat is this founded? On the supposition that it Creates a bias. All experience goes to prove
The principle upon which these cases were decided, is, that an opinion formed and expressed by a juror, is of itself evidence that he does not stand indifferent between the parties. I do not perceive how the case before me can be distinguished. On the trial of Fries for treason, before Judge Iredell, on an application for a new trial, one question was as to the competency of a juror who had expressed himself in strong terms as to the prisoner’s guilt. That learned judge put the question on this ground: that when a predetermined opinion is formed, from whatever motives, it creates an improper bias, extremely difficult to get rid of; and may influence an honest man unwarily to give a wrong verdict: that he becomes less able to discriminate facts. The reasoning of chief justice Mdrshall, on the trial of Col. Burr,vol. 1, p. 370, 419, is directly in point. He has shewn in the most satisfactory mariner, that a juror who has gi^en his opinibn, cannot be consider*
The result of my opinion is, that enough has been shewn to render the decision in the court below questionable ; that the challenge forms a part of the record; and that the defendants are entitled to the allowance of a certiorari.
Certiorari granted,