2 Keyes 424 | NY | 1866
The evidence, which was undisputed, disclosed a clear case of murder. The accused and the deceased were keepers of adjoining liquor and lunch saloons, in this city, in the early part of January, 1865, and had been for several months previously. Ho direct proof was given of any personal difficulty prior to the occurrence which resulted in the death of Lazarus, though from their acts and expressions on that occasion, it is to be inferred that ill feeling existed between them. About three o’clock on the morning of the 3d January, the accused and three of his companions (Clark, McDonald
This knife, he described as being a two-edged dagger knife, with a blade some seven or eight inches long, which had been exhibited by the prisoner in Lazarus’ bar-room the morning before. Richards, another witness, sat by the stove, with perhaps a better chance for observation. His statement was, • that Lazarus stood at the table by the stove, and the prisoner by the bar, whilst the altercation of words was going on; that the latter walked over toward the table, pulled out the knife and plunged it into Lazarus’ neck. Lazarus staggered over against the table, and was caught by the bar-keeper before falling on the floor. The prisoner and his party forthwith fled the premises, the prisoner exclaiming as he left, “ He is a good little man, but I guess I have fixed him.” What became of California Jack did not appear. Friery, McDonald and Clark got into a sleigh that was in waiting at the door, and ordered the coachman to drive off. They were driven up the Bowery, stopping at a place called the “ Rambler,” where they drank liquor; and from thence were driven to the corner of the Third avenue and Ninety-second street (near Yorkville), when they discharged the sleigh. On
Upon this presentation of facts, there could have been but one conclusion justly reached. A more open, unprovoked and brutal murder has rarely stained the annals of crime. The prisoner, with his half inebriated associates, at the dead hour of the night, visits the premises of his rival in business, if not in other ways. It may.be that personal violence was not originally contemplated, though from their conduct and declarations immediately upon entering there is reason-to suppose that they had it in view. Lazarus was there, but in no condition to resist them. Besides having a wounded hand, he had been drinking liquor. From what passed between the prisoner and the deceased before the fatal blow was struck, it is
Under the statute of 1855 (Laws of 1855, ch. 337, § 3), our jurisdiction extends to ordering anew trial, if satisfied, that “ the verdict was against the weight of evidence or against law, or that justice' requires a new trial.” Manifestly, there was no injustice in this case in the verdict of the jury; the evidence and the circumstances under which the homicide was perpetrated, called for no other; it was, in truth, a case of wanton killing without any provocation. It cannot be contended, for a moment, that the accused did not design to kill. Hot under the impulse of sudden passion (for there had been no provocation to arouse it), he comes upon the deceased, and with inhuman and fiendish spirit and intent, plunges a deadly weapon, that had been before concealed upon his person, into a'vital part of the neck of his victim; it is very clear that unless the accused was prejudiced in his trial by some erroneous legal ruling, “ justice does not require ” a reversal of the
1. The rulings of the court as to evidence. It appears that although the accused and the deceased were maintaining the same kind of business, the former, from some unexplained cause, was in the habit of visiting the latter, and there drinking himself and treating strangers to drinks. Between four and five o’clock of the morning before the homicide, he made one of these visits; he had with him a two-edged dagger knife, having a blade seven , or eight inches long. Leaning against the counter, he drew the knife from his pocket and plunged it into the counter saying, “ that will be the death of somebody around here before long,” or “ somebody here; ” Lazarus was not present. On the evening of the same day (Lazarus being absent), he came in again, stepped to a lunch table; eat something; seized the mustard cup from the table, threw it across the room and left the premises. About two weeks before the homicide, between seven and eight o’clock in the morning, he came in with one of his companions, and called for a drink; there was a Newfoundland dog, kept by Lazarus, lying sick under the table; before drinking he took an ice pick from his pocket, and hit the dog three or four times on the head, then, taking part of his drink, he commenced beating the dog again, and thrust the sharp end of the ice pick into the
2. On the cross-examination of Lazarus’ bar-keeper, he was asked, “ Did a part of the custom of that house come from women ?” The question was objected to as irrelevant and immaterial, and excluded under exception. There is no point in the exception. It was of no sort of importance what were the classes or sex of the customers of Lazarus.
3. It appeared, as has been stated, that just before leaving for Lazarus’ saloon, Clark, McDonald, California Jack and the accused were together in the bar-room of the latter. On the examination of a witness on the part of the accused, he was asked, “Do you know what, if anything, was said between California Jack, Clark, McDonald and Friery, in his (Friery’s) bar-room?” The district attorney objected to the question, and the objection was sustained. It is unnecessary to. say a word in justification of this ruling. It was utterly immaterial what they talked about as affecting any issue in the case.
The court found the causes of challenge untrue, they were then challenged for favor, and found indifferent by the triers. These were, also, peremptorily challenged by the prisoner. In each of these cases, exceptions were taken to overruling the challenges for principal cause; and also the charges or instructions of the recorder to the triers. It is now urged that these exceptions are open for examination and review, and that if there were error in the proceedings upon the challenges for cause, though the jurors were ultimately excluded by the peremptory challenges of the prisoner, he is. entitled to a reversal of the judgment. This is not so. Questions raised previous to the peremptory challenge of these jurors, are not open for examination at his instance. As was said by the distinguished judge,, in delivering the opinion of the court, in the case of Freeman v. The People, 4 Denio, 9, “ The prisoner had the power and the right to use his peremptory challenges as he pleased, and the court cannot judicially know for what cause or with what design he resorted to them. He was free to use or not to use them, as he thought proper; but having resorted to them, they must be followed out to all their legitimate consequences. Had he omitted to make peremptory challenges, his exceptions growing out of the various challenges for cause, would have been regularly here for revision. But he chose by his own voluntary act to exclude these jurors, and thus virtually, and as I think, effectually blotted out all such errors, if any, as had previously-
First. James R. Devies, on being called, was challenged on the ground that he did not own real estate, and had not been taxed for personal estate. The juror testified that he did not own any real estate, had not yet been taxed for it, but expected that he would be during the year. The recorder overruled the challenge. This was not error. The provisions of the Revised Statutes respecting property or assessment qualifications of jurors (2 R. S., 411, § 13), were repealed, as to the city of Sew York, by an act passed in 1847, entitled “ An act in relation to jurors in the city of Yew York.” . Laws of 1847, ch. 49.5. That act declared, that it should not be necessary as a qualification for any juror in the city of Yew York, that he should be actually assessed therein; but that all persons, residing in the city, who should be qualified to serve as jurors, and not exempted by any of the laws of the State, should be selected as such, whether they had been assessed or not. The objection to the juror was therefore untenable.
Second. Charles E. Hadden, on being called, was challenged for “ principal cause.” The bill of exceptions does not show, in terms, what cause of challenge was alleged, but from the scope and character of the evidence it seems to have been that the juror had formed an opinion that a
Third. Nathan Brewster, on being called, was challenged for principal cause. On being interrogated by the prisoner’s counsel, he testified that he had read something of the transaction at the time of its occurrence, referring to the homicide of Lazarus, but had formed no opinion about it. From what he read he thought there had been some crime committed. On being interrogated by the
Fourth. John Woods, on being called, was first challenged for principal cause. He testified, on examination of prisoner’s counsel, that he had read of the transaction in the papers; could not say that he had formed any opinion as to the guilt or innocence of the party charged ; formed the opinion that the party had committed a crime. On the question being put to him by the district attorney, whether he had. actually formed an opinion that Bernard Friery was either guilty or innocent - of killing Harry Lazarus? he answered no. The challenge was properly overruled. The juror had formed no opinion either as to the guilt or innocence of the accused on trial. He had read an account of the homicide in the papers, and had come to the conclusion that the party charged had committed a crime. This, as has been said, did not legally disqualify him. The juror was then challenged for favor, and further
Fifth. John H. Hagen, on being called, was challenged in the first place, for principal cause. On being interrogated, he answered in substance that he had read of this matter (the interrogatory probably referring to the matter on trial, though not in terms stated); he did not know but he might at the time he read of it, have formed an opinion on this matter; his memory was rather treacherous; should not have remembered the principal facts stated in the newspapers, if he had not heard them recounted since he had been in the court room; had no impression or belief as to whether what he read in the paper was true or not; did not recollect of having any impression as to whether the party charged by the newspapers did what the newspapers said he did. The challenge was overruled properly, as there was not a scintilla of evidence to support it.
Sixth. Benjamin F. Baton, being called, was challenged for principal cause. He testified that he heard the matter spoken of at the time, and thinks he must have said something about it, but is not positive; thinks it must have
Seventh. William H. Hicks, being called, was challenged for principal cause. He testified that he had read and talked of the matter, but had formed no opinion as to it; thinks he has formed an opinion as to whether a crime was committed, but has never expressed it. His opinion that a crime was committed, attaches to no individual ; the challenge was overruled. It is unnecessary to repeat what has been before said, that the formation or expression of an opinion as to the legal character of a given transaction, attaching criminality to no particular individual, and especially not to the accused, who is on his trial, is no sufficient ground for principal challenge.
Eighth. Charles F. Newton, on being called, was challenged for principal cause. He testified, that he had read - about the matter in the Herald ; his reading did not lead _ him to the formation of any opinion; he had an opinion from the reading, that a difficulty had occurred in adrink-
I have thus gone through at length the same proceedings on the challenges of the persons sworn as jurors. In my opinion, there was no pretext for alleging error, either in the recorder’s decisions of the principal challenges, or in his instructions to the triers when challenges were interposed to the favor. In the former the challenges were not sustained by the evidence, and in the latter the judge’s instructions were guardedly correct and remarkably free from usurpation of the triers’ province. There was no error in deciding or sustaining or instructing, substantially, that the formation or expression of opinion, or the possession of a bias, was immaterial, unless that such opinion or bias was against the prisoner, per se.
' The remaining matter to be considered is in respect to the challenge to the array. The court, in addition to the regular and usual panel, had ordered an extra panel of one thousand jurors to be summoned for the Sessions or term at which the prisoner’s trial was moved. This was done under the authority of" the act of December, 1847 (before referred to), creating the office of commissioner of jurors for the city of Eew York, and defining his powers and duties, the ninth section of which provided that after the commissioner had completed the petit jury list, and delivered a certified copy thereof to the county clerk, and the clerk had prepared the ballots and deposited
I am of the opinion, therefore, that it was not error to disallow the challenge and refuse to quash the array. The acts and omissions complained of, the mere defective working of the statute ■ machinery by the drawing and summoning officers, in the absence of any suggestion of fraud or misconduct prejudicing litigants, or any misconduct, save a neglect or omission to strictly observe the
The judgment should be affirmed.
Concurring, Peckham, Porter and Leonard, JJ., and Davies, Oh. J.
Hunt, J., thinks the challenge to the array should have been sustained. Concurring, Smith and Morgan, JJ.
Judgment affirmed.