73 N.Y.S. 226 | N.Y. App. Div. | 1901
The order denying the motion for a new trial should be reversed, the judgment upon'the conviction reversed, the verdict of the jury set aside, and a new trial ordered. We place our decision upon the ground that the juror Lewis complained of was incompetent and was guilty of misconduct on the trial.
The indictment was for manslaughter, second degree, in causing the death of one Everett G. Austin, July 8, 1899, at the town of Cuba, Allegany county, without design to effect death, by exploding dynamite under a cottage in which Austin was at the time. The indictment was filed October 21, 1899, and the defendant was arraigned the same day and pleaded not guilty.
The trial began February 19, 1900, and resulted in a conviction and the judgment appealed from. The: defense consisted of a per-' sistent denial that the defendant exploded the dynamite under the cottage. The court at which the trial 'took place commenced Fébfuary 12, 1900, and the trial commenced the second Monday of the
Mor man P. Brainard, a practicing physician and surgeon, who had lived and practiced his profession' at Andover since 1878, made affidavit that, after Lewis was summoned as a juror and shortly before the trial, he had a talk with him about this case, and he said that he would be a juror on it, and that he would teach him not to use dynamite; that theyhad considerable talk back and forth relative to the case, and that Lewis seemed particularly anxious to be upon the jury; that he had several talks with him in reference to the case, and the sarnie was discussed by him and Lewis sometime before the trial.
John Wall, a resident of Andover, by occupation an oil driller,, made affidavit that shortly before the trial he heard Lewis say, when speaking of the case, that he would be on the jury and he would show him how to use dynamite; that he would show boys how to use or not to use it.
Lee M. Trowbridge, a resident of Andover, a farmer by -occupation, made affidavit that he did the work for Lewis during his absence at court the first week of the term; that he came home to remain over Sunday, and on Saturday, February seventeenth, he conversed with him with reference to the trial of this case, which was understood to be set down for the next week, and in that conversation Lewis said that in case he was one of the lucky ones to get on that trial he wanted Trowbridge to take care of his work while he was gone; that he expressed his desire several times to get on that jury; that he said, in substance, that he was in favor of capital punishment in that case; that he did not pretend to give the correct language, but that was the substance and meaning of what he said.
Ezra B. Zeliff, a resident of Andover, made affidavit that, on Saturday, February seventeenth, in a conversation between them, he asked Lewis what they were going to do with Bishop, and
Lewis, the juror, made affidavit denying that he had any of the conversations given in the affidavits of the foregoing five witnesses.
■He was drawn, sworn and examined on Monday, February nineteenth, as to his qualification as juror, and among othér things, stated that he had no opinion about the case; that he had not talked with any one about it; that he had heard it discussed, that is, had. just heard it spoken of, but had heard no opinion expressed about it; that he had heard since he came to court that the case was something about dynamite business. He Avas at the close of the examination accepted and was sworn as a juror in the case.
The jury was completed Tuesday and sworn, and then the court adjourned until Wednesday morning,, February twentyfirst. After the adjournment of the court, February twentieth, the defendant’s attorney received some telephone messages from Andover with reference to statements said to have been made by Lewvis before he came to court,, which rendered him incompetent to sit in the case, hut it was impossible to get any facts by telephone. On Wednesday morning, February twenty-first, after the district attorney had opened the case, and a witness had been sworn, an anonymous letter was received by defendant’s counsel, which read as follows:
“ Confidential. Andover, N. Y., Feb. 21st, 1900.
“ J. C. Leggett, Belmont, N. Y.:
“Dear Sir.-Mortimer Gr. Lewis, one of the jurors drawn from this town, said to Ezra Zeliff that he would he on the jury and would learn that young man not to use any more dynamite, or in substance this.”.
This letter was at once shown to the district attorney and the presiding judge, and a conference was thereupon had in. another room, the judge, the district attorney, the defendant’s counsel and the juror Lewis being present. Levsds was informed of the charge
The first question to be determined is one of fact, whether the juror made the statements sworn to in the five affidavits. It may be said that this is the only question, because upon the" determination of this question the decision of this motion should rest.
It is suggested that People v. Benham (160 N. Y. 402) is authority for the proposition that we should not interfere with the conclusion arrived at by the county judge upon the facts.
In that case the court said (p. 447): “ A number of witnesses made affidavit to conversations had with him (the juror) prior to his selection as a juror, in which he is said to have made statements which if true would have disqualified him from sitting as a juror. He makes an affidavit vigorously denying these charges. A question of fact is thus' presented which has been disposed of by the trial judge, who appears to have believed the statement made by
The original order entered May 11, 1900, denying the. motion, contained the following language : “ Said motions- having been submitted without argument, It is ordered, that said motions be, and each one is hereby denied proforma, and with out deciding the questions of fact raised by the-above-mentioned affidavits, as to the. competency of the juror Lewis, which questions are reserved for the Appellate division.” Upon original argument of the appeal, our attention being called to this language in the. order, we refused, to consider the appeal therefrom, and sent the- matter back, to the county judge for his further action. The case comes back to us now with the supplemental order entered November 7, 1901, which recites that, “ the Appellate Division having directed that said motion be again considered and the same having been submitted’ and then orders “ that said motion be and each one is hereby denied.”
In these circumstances we do not feel bound by the suggestions made in the Benham case, but should examine and consider this question of fact upon its merits.
We cannot agree with the county judge in the conclusion he reached. There is not a particle of evidence in the record tending to discredit these'five witnesses, They were all neighbors of Lewis, except one who was a fellow juror at .the court. One was a physician and surgeon who had lived and practiced his profession in Lewis’ town since 1878, and the others were well-known citizens, and no effort was made to show any reason or motive 'for their testifying untruly. Their character and reputation were in no way attacked. It was not suggested that they were unfriendly to the juror Lewis so as to have any desire to injure or disgrace, him, or that they had any friendly relations with the defendant, or his family or his counsel, so as to have any desire to assist them. "We can conceive of no reason why they should make the affidavits if they were untrue, and the conversations sworn to by them had taken place so recently that their recollection could not very well be at fault. We agree that motions of this kind- should be very carefully
It is said the court below had no power to set aside the verdict and order a new trial, and that this court can afford the defendant no relief. It cannot be doubted that a person on trial for a high crime is entitled to a fair trial, before an impartial jury. The Constitution guarantees him this right and no statute can deprive him of it. If the conduct of this man Lewis is not to be regarded a's'“ misconduct” of the jury, for which a new trial may be granted under the provision of the Code of Criminal Procedure (§ 465, subd. 3), then the court has inherent power outside the statute to afford such relief, and any provision of the Code prohibiting the exercise of such power would , be void as in contravention of the constitutional rights of the defendant. It was not suggested in the Benharn case that there was.want of power in the court to grant such relief, and we think there is no authority for the claim made that the power does not exist. It is to be regretted that this juror was allowed to sit in the case, and that the verdict must, therefore, be set aside,
There was no legal obstacle in the way of doing so at the time the conference was had. The record does not show' that any evidence had then been taken, and if not, then under the provisions of the Code of Civil Procedure the juror could have been excluded and another juror called to take his place. A witness had been sworn, and though the record does not so state, it is claimed that a little evidence of a formal kind had been taken. Assume this to have been the case, then if a change in'jurors had been made and the same evidence had been again placed before the jury, no injury would have been done .the defendant thereby, and no cause for a reversal of the judgment on appeal would have been presented. The counsel should, so far as possible, have removed all improper persons from the jury by the exercise of his right of challenge. In order to -ascertain. if causes of challenge exist, jurors are called, sworn and examined as to their qualitications to serve as such, and that' course was adopted with this juror. Instead of telling the truth when examined under oath, he committed deliberate perjury ; stated that he had formed no opinion, had talked with no one about the case, had heard nothing about it except that there was such a case to be tried, and that it was something about dynamite business. The counsel were thus deceived, thrown off their guard and deprived
The defendant was entitled to be. tried by, and to have his case passed upon by, a full jury of twelve fair, honest, impartial men. He was deprived of that right in this case, and his conviction and the judgment thereon must, therefore, be reversed and set aside and a new trial ordered..
■The order denying the motion for a new trial and the judgment appealed from should be reversed, the verdict set aside and a new trial ordered.
All concurred.
Judgment of conviction and order denying motion for new trial reversed and new trial ordered and case remitted to the County Court, pursuant to section 547, Code Criminal Procedure.