20 N.Y.S. 209 | N.Y. Sup. Ct. | 1892
The defendant was indicted at the Delaware oyer and terminer, September, 1889, and was there arraigned, and pleaded not guilty, and the indictment was thereupon' sent to the court of sessions for trial. At a term of the latter court commencing November 17, 1890, both of the justices of the sessions, who had been designated according to statute, failed to appear, one being dead and the other absent. The county judge thereupon, by order duly entered, designated S. Forman Adee, a justice of the peace of the county, to serve as justice of sessions during the term; and also designated Charles MoPhail, a justice of the peace of the county, to serve as justice of sessions until the absent justice attended. The court being so constituted, the trial of the defendant was moved, and had before the court and a jury, and a verdict of guilty rendered, which was received by the court, and recorded by the clerk upon its minutes, and the jury discharged from the case. The defendant then moved to set aside the verdict on the ground of alleged misconduct of one of the jurymen, but this motion was denied. On the 26th November, 1890, at the time fixed for pronouncing judgment on the verdict, the defendant, upon affidavits, made a motion in arrest of judgment upon the following grounds: “(1) That the court of sessions, at which the trial of the defendant had been had and in the minutes of which the verdict of guilty has been entered, was and is illegally constituted, in this, to wit: that S. Forman Adee, one of the members of said court, is related to said defendant within the sixth degree, and that by reason of such relationship he was and is incapacitated from sitting as a justice of sessions and member of said
2. If the first trial was void by reason of the relationship of one member of the court, it would follow that there would be no basis for the defense of former conviction. Carter v. People, 1 Abb. Dec. 308. It would be a case of mistrial, (Shepherd v. People, 25 N. Y. 420, citing 2 Hawk. P. C. c. 36, § 15,) and that would be no trial. If the court as constituted was without authority in the premises, the defendant was not in jeopardy. 1 Bish. Crim. Law, § 1028. Want of jurisdiction may be shown collaterally. Ferguson v. Crawford, 70 N. Y. 265. In Baldwin v. McArthur, 17 Barb. 414, it was held that where one of the members of a court of sessions granting an order
If the first trial was not void, but only voidable, the question might arise whether the order setting aside the verdict, which was made by the same court upon the fact of relationship appearing, would not conclude the defendant until reversed. That order was not appealed from. It was held in Gay v. General Sessions, 12 Wend. 272, that a.court of general sessions had power to set aside a verdict for irregularity. It is not, however, necessary to decide upon the validity of that order.
There are no other questions that call for special consideration. The defendant claims that the order continuing the unfinished business, made at the close of the first term, to the following term, was invalid. It was, however, not necessary that any order should have been made for that purpose, The defendant claims that he was entitled to a separate judgment on the verdict upon the issue of former conviction. We "think not. The Code does not seem to provide for this particular contingency. The former practice maj therefore be followed. See People v. Trimble, (N. Y. App.) 29 N. E. Rep, 1100. Section 442, Code Crim. Proc., to which the counsel refers, applies only to judgment in case of special verdict. FTor was the defendant entitled to re-examine the jurors after they had passed upon the question first submitted to them. The jury was impaneled to try the indictment. Before it was sworn the defendant had and exercised the right of examination, and there is no claim that he did not then fully exhaust the subject. The foregoing considerations lead to the affirmance of the judgment.
Judgment of the court of sessions of Delaware county affirmed, and proceedings remitted to that court for the execution of the judgment. All concur.