116 N.Y.S. 911 | N.Y. App. Div. | 1909
The defendant was indicted for grand larceny in the first degree for having, on the 3d of October, 1905, stolen two promissory notes, one for $750 and the other for $500.
. A serious question that is raised by an exception of the defendant to a question asked one of the jurors upon a challenge as to his qualification as a juror to try this ¡particular case is presented. The record does not disclose that a challange was interposed as to each of these jurors, but the district attorney and counsel for the defendant examined each of the proposed jurors, and no objection was taken to the questions upon the ground that no challenge had been interposed. I think we must assume that there was such a challenge and that the questions were asked to determine the competency of each particular juror. Under this indictment there were two questions for the jury to consider, (1) whether the defendant was guilty of the crime charged, to wit, the larceny of certain promissory notes, and (2) whether the defendant had been formerly convicted of grand larceny in the second degree. In the examination of the proposed jurors counsel for the defendant asked one juror whether, if the evidence would show that the defendant had been convicted before of a crime and had served a term in the penitentiary, that would influence him at all in the consideration of the evidence of this case. To that the district attorney objected, and the court sustained the objection, as the second conviction was one of the issues in the case. I think this objection was properly sustained, as in considering the second question referred to the jury would have to consider whether or not the defendant had been before convicted of a crime. Counsel for the defendant then asked a juror this question: “ I will ask the eighth juror, if it develops from the evidence that this defendant was arraigned upon an indictment, charging him with grand larceny, and tried, and convicted and
Section 376 of the Code of Criminal Procedure provides that particular causes of challenge are of two kinds, (1) “ For such a bias, as, when the existence of the facts is ascertained, does in judgment of law disqualify the juror, and which is known in this Code as implied bias;” and (2), “For the existence' of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise óf a sound discretion, that such juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this Code as actual bias.” Section 383 provides: H Upon th© trial of a challenge to an individual juror, the. juror
It is proper for us to say that we have examined the other questions presented by counsel for the defendant; that we think the verdict was sustained by the evidence, and but for this error we should affirm the judgment.
The judgment appealed from is, therefore, reversed and a hew trial ordered.
Patterson, P. J., Clarke, Houghton and Scott, JJ., concurred.
Judgment reversed and new trial ordered. Settle order on no tice.