3 Abb. Pr. 42 | N.Y. Sup. Ct. | 1856
The defendants stand indicted for the alleged murder of William Poole, in the city and county of New York. The indictment contains as many counts as there are defendants, respectively charging each as primary, and the others as secondary principals. The first count charges the defendant Baker as the most prominent actor, and the others as being present at the scene of the murder, and aiding and abetting him. He elected to be tried separately. He was first tried at a Court of Oyer and Terminer, held before Judge Roosevelt, in the county of New York, (where the venue is laid and the indictment was found,) in December last. The trial lasted nearly a fortnight, and resulted in the disagreement of the jurors and their discharge. His trial was again commenced at a Court of Oyer and Terminer held before me, pursuant to an appointment by the Chief Judge of the Court of Appeals in the same county, on the 14th of April last. Five hundred jurors had been summoned to attend the trial. Of that number, five only were sworn, the others having failed to attend, or having been excused or rejected on challenges for cause, or on peremptory challenges in behalf of the defendant. Another panel of five hundred jurors was then ordered, and they were summoned to attend eventually on the 24th of April. On that and the next days seven of the last panel were procured, who, from their answers, appeared to be free from any legal exceptions. One of them was excused from serving, as he was conscientiously opposed to attending to any secular business on the Jewish Sabbath, and it was conceded that the trial would extend beyond one such day. The other six were sworn, when that panel was exhausted. Another of two hundred and fifty was then ordered for the 29th of April. On the last mentioned day the 12th juror was obtained, there remaining in the box, when his name was drawn, about twenty undrawn ballots. The empanneling of the jury occupied nearly four days. About four hundred persons appeared; of those two hundred and twenty-two were set aside on challenge for having formed and expressed an opinion as to the guilt or innocence of the
The trial proceeded a short time, during which two witnesses were examined on the 29th of April. On the next day one of the jurors sworn failed to attend, and it appeared, on an examination of a messenger from him, that he was confined to his bed, and probably would remain so for a considerable period, by indisposition. The counsel for Baker thereupon proposed that the trial should proceed before the eleven jurors who were then present, or that the Jew who had been excused should sit on the trial, and thus complete the number, and that those who remained of the last panel should be re-summoned, and that the person whose name should be first drawn should be sworn and act as the twelfth juror. These propositions were declined by the counsel for the people, and the eleven jurors were thereupon discharged. The court was then adjourned to the first Tuesday in June, and a panel of one thousand jurors was ordered. Subsequently to the last mentioned adjournment, a certiorari was issued by the District Attorney, and allowed by Judge Roosevelt, removing the action into the Supreme Court.
On the 24th of May two motions were made at a special term held before me in New York, pursuant to an appointment made by the Chief Judge of the Court of Appeals, and also at the request of the Justices of the First Judicial District, who were otherwise engaged,—one by the counsel for the prisoners, that the certiorari should be quashed as having been improvidently issued, and the other by the counsel for the People, that the place of trial should be changed to some other county, on the ground that a fair and impartial trial of the action could not be had in the city and county of New York.
1. The prisoner’s counsel contend in support of their motion, that a certiora/ri to remove an indictment from the Oyer and Terminer to the Supreme Court cannot lawfully issue at the instance of the counsel for the prosecution.
There can be no doubt but that it has always been competent for the counsel for the crown in England, and since our
The right of the prosecution to issue this process is impliedly recognized in this State in the provision of the Bevised Statutes (2 Rev. Stats., 733), that “ all issues of fact joined upon any indictment shall be tried by a jury in the county where such indictment was found, unless for special causes the Supreme Court shall order an indictment removed into that court to be tried in some other county.” This speaks of the removal of criminal causes as an existing common law practice, and makes no attempt to restrict it.
There are several cases in our courts which sustain the right to obtain this process in behalf of the people. In the case of The People v. Vermilyea, (7 Cow. 141), where one of the in
The counsel for the defendants contended that if the right to issue the certiorari in criminal cases, by the District Attorney, had existed at common law, it would have been abrogated by sections 1 and 2 of chapter 65 of the acts of 1829, and section 1 of chapter 12 of the act of 1847. The act of 1829 provides (§ 1) that no cerUorari to remove into the Supreme Court any indictment pending in a Court of Oyer and Terminer, before trial thereon, shall be effectual unless allowed by a Justice of the Supreme Court, or (then) circuit Judge; and (§ 2) that before allowing any such writ, the officer to whom application should be made, should take from the defendant a recognizance with sureties, conditioned that the defendant prosecuting such writ will appear at the return day thereof in the Supreme Court, and abide the orders and rules of such court; and section 1 of the act of 1847, merely exempts the defendants who may
2. The most material, and by far the most difficult, question presented for my consideration is, whether the place of trial should be changed on the ground that a fair and impartial trial cannot be had in the city and county of New York.
There are many palpable reasons why trials in criminal cases should ordinarily be had in the counties where the transactions which gave rise to them occurred, and a change should not be made except for forcible and clearly established causes. Our statutes require that issues of fact joined upon any indictment shall be tried by a jury in the county where such indictment was found, unless for special causes the Supreme Court shall order an indictment removed into that court, to be tried in some other county (2 Rev. Stats., 733, § 1). Mr. Chitty
A juror should have the ability, and one who is conscientious would feel the inclination, to decide all questions of fact submitted to him solely from a fair and impartial view of the evidence, without being at all influenced by ulterior considerations ; but that would be difficult, if not impossible, where he had previously formed and expressed a strong opinion upon the matter, especially if it corresponded with the public sentiment. Let him exert himself as he may, he cannot wholly avoid the difficulty. He will, in a case where the testimony is contradictory, yield a more ready credence, and give greater weight to that which sustains than that which opposes his pre■conception—such is the infirmity of the human mind, and we
In the case under consideration there were many circumstances calculated to attract attention, and to induce the formation and expression of opinion, especially in a community proverbially excitable. 'Of these some of the more prominent were the public character of the deceased, and some of those who were present at the time when he received his death wound, and who have been charged with a participation in the tragedy : the singular prolongation of the life of the wounded man with a ball in his heart; the immense funeral procession which accompanied and followed the body to the grave ; the flight of one of the persons charged with the homicide across the ocean; the pursuit and capture of the fugitive under circumstances which induced the strong condemnation of his eloquent counsel on the argument before me; his subsequent protracted trial, and the publication in the newspapers of the city, of the testimony, which was taken with great minuteness, of the eloquent speeches of the counsel, and of the elaborate and able charge of the presiding judge. It is not at all remarkable that these circumstances should have led to the formation and expression of opinions by the citizens of Blew York, especially those who witnessed any of the exciting-scenes, or who read the newspapers. That there is a strong; and all but universal sentiment in the city as to the truth or-falsity of the charge as it respects the defendant Baker, was apparent, from the statements of the jurors who appeared-before me. Of the two hundred and thirty-eight who were examined, all but sixteen had both formed and expressed opinions as to the alleged guilt of the prisoner, and still retained them. The number of those who passed the ordeal of a strict examination was so inconsiderable that they could not be deemed a fair representation of the intelligence and reliability of the class which comprises the jurors of the county. The jurors who were admitted may all have been respectable men. I had no personal acquaintance with either
The counsel for the defendant McLaughlin contended that the action should not be sent into another county for trial, as, if it should take that direction as to one it must as to all, and nothing appeared to prove that his client could not have a fair trial in the county of Hew York.
It is undoubtedly true that as to the question whether McLaughlin participated in the transaction at all, or in any manner which would make him responsible, there is no evidence that any opinions have been formed or expressed. But then when one is charged as an active participator, an opinion as to the guilt or innocence of one of the actors, and especially when all were together, must have an important bearing as to all, and would disqualify a proposed juror who had entertained and expressed it on the trial of either of the defendants. Sergeant Hawkins says, (Hawk. Pl. Cr. ch. 43, § 27), that “ the exception to an indictor is good upon the trial of another indictment or action wherein the same matter is either in question or happens to be material, though not directly in issue.” The principle that an opinion as to the guilt of an associate would exclude a juror was sustained by the Superior Court, in the case of “The People v. Vermilyea.” There would, therefore, be a difficulty in obtaining a fair and unprejudiced jury in Hew York to try either of the defendants.
It seems from the affidavit of Baker that he has a large number of witnesses who are poor, and unable to bear the expenses of a journey to another and perhaps distant county, and that he is also destitute of property, and his counsel made a feeling appeal to me against changing the place of trial, and thereby in effect depriving him of the ability to establish his defence. This objection, if well founded, would be entitled to great consideration. The defendants should not be deprived of any legitimate means of defence, nor will I consent to do that. They must, at all events, have a fair trial. I shall therefore, from a sense of justice evidently as to Baker, and probably as to the other defendants, require that the District Attorney shall make a satisfactory arrangement for the pay
It can scarcely be necessary for me to say that I do not intend to impeach, in the slightest degree, the general character of Hew York jurors. Their respectability and their disposition to do right are not doubted, but they, like those selected from the rural districts, may be influenced in weighing the evidence and adopting their conclusions, by the public sentiment when that has been strongly formed and become generally known.
Ordinarily where the place of trial is changed, an adjoining county should be selected, and so ■ the authorities declare. However, there is no express limitation, and if the necessity which may require any change should call for a more remote county, that should be selected. In this case it is probable that the constant intercourse between the inhabitants of Hew York and the adjoining counties, and the free circulation of the newspapers of the city in its vicinity, have effected an extensive coincidence of sentiment, and the embarrassment in obtaining a fair and impartial trial in any adjoining county would be very great; I must therefore direct that the trial shall be had in a more remote county. The notice of motion designates the county of Suffolk, and as no particular objection was raised to that locality, I shall direct that the trial be had there, unless the counsel for the prosecution and for the defendants shall sign a mutual consent designating some other county.
An order must be entered,, reciting that it satisfactorily appears from the disagreement of the jury first empaneled to
The following was the notice of motion.
Title of the Cause.
Please to take notice, that the indictment against the above-named parties, for the-murder of William Poole, by a writ of certiorari, allowed by the Hon. James J Roosevelt, May 6, 1856, under and by virtue of the provisions of the statute in such-case made and provided, has been removed from the Court of Oyer and Terminer into the Supreme Court, sitting in the first judicial district, and said writ and indictment returned to and filed with the Clerk of the said Supreme Court, at his oifice, May 7, 1856.
Please further to take notice, that upon the said indictment so removed and filed, and upon the original affidavits of the copies hereto annexed, I shall on behalf of the people of the State of New York, prosecuting their pleas in the County of New York, move on the 24th day of May inst., A. D. 1856, before Hon. Selah B. Strong, one of the Justices of the Supreme Court, at the Chambers of the said Court, in the City of New York, at 11 o’clock on the morning of that day, that the trial of said' indictment against the several parties above named, be changed from the County of New York, and the said indictment thereupon be carried down for trial at the-next Circuit Court of the County of Suffolk, or for such action in regard to the premises and indictment aforesaid, as the said Justice of the Supreme Court may take. Yours, &e. A. CAREY HALL.
District Attorney for County of New York.
To Lewis Baker, James Turner, Patrick McLaughlin, Charles Van Pelt, CorneliusLinn, John Hyler, and each of them.
And to James T. Brady, Horace F. Clarke, Daniel E. Sickles, and A. D. Russell, Esqs., of Counsel.