to be tried in a county other than that in which the offense [* 353 ] is laid, will not authorize the trial in such county, * without such a suggestion on the roll. (c) This suggestion when once entered is not traversable, and therefore the court will require very strong evidence of probable unfairness before they will allow it to be entered. (d)

The venue may be changed, on motion of the public prosecutor, if it appears that a fair and impartial trial can not be had, in the county where the indictment was found. And this, although there has been no actual experiment made, by way of trying the cause, or even impanelling a jury, in the county where the venue is laid. (e) There is no fixed rule defining what shall or shall not be received, as proof of the fact that a fair and impartial trial can not be had. (ƒ) (2)

3. Jury, and challenges.

The qualifications of jurors, and the manner of selecting names from the assessment roll to be put in the baliot-box of jurors in each county, are fixed by the Revised Statutes. (g) But the entire title of those statutes relating to the trial of issues of fact, was repealed by Laws of 1877, ch. 417. The subject is now regulated by the Codes. (3)

(c) 3 Wend., 431.

(d) 1 Chit. Cr. L., 201. 7 Cowen, 108. (e) People v. Webb, 1 Hill, 179.

(f) Ibid.
(g) 2 R. S., 411, 12.

(2) That a fair and impartial trial, by any means within the reach of the law, can not be had in the county wherein the venue is laid, is a sufficient reason for changing the place of trial. It is not indispensable that there should have been an ineffectual attempt to obtain a jury in that county. (People v. Long Island R. R. Co., 4 Park., 602; S. C., 16 How. Pr., 106.) The prisoner is not entitled to a change of the place of trial unless he makes a clear case that, by reason of popular passion or prejudice he can not have an impartial trial in the county where the venue is laid. The par ticular facts and circumstances must be stated in the affidavits. (People v. Sammis, 3 Hun, 560; S. C., 6 T. & C., 328.) The place of trial can not be changed, for the convenience of parties and witnesses. (People v. Harris, 4 Denio, 150.) The place of trial may be changed at the instance of the district attorney. And if changed as to one of several defendants, it is changed as to all. But in such case, if the defendants are indigent, the prosecution will be required to procure the attendance of their witnesses at such place of trial. (People v. Baker, 3 Park., 181; S. C., 3 Ab. Pr, 42)

(3) JURY.

Formation of]-The Code of Criminal Procedure (§ 358) declares that the trial jury is formed as prescribed by the Code of Civil Procedure.

Qualifications of trial jurors. (Code of Civil Procedure, §§ 1027-1062 inclusive.) Formation of the jury. (İb., §§ 1163–1180; ib., §§ 1190, 3350, 3351.) Alien not entitled to special jury. (Ib., § 1190.) Trial jurors in Kings county. (Ib., §§ 1029, 1126-1162, 1174, 1191.) Trial jurors in city and county of New York. (Ib., §§ 1029, 1079-1125, 1174, 1191.) Legislature may regulate manner of procuring jury. (Stokes v. Peo., 53 N. Y., 164; Gardner v. Peo., 6 Park., 155.) Mere irregularities in drawing jury, not prejudicial, no ground of error. (Cox v. Peo., 80 N. Y., 500. See also Code Civ. Pro., §§ 3350, 3351.)

The question how far the jury are judges of the law, as well as of the fact, is one of considerable importance, and deserves some attention in this place.

They are judges of the fact, both in civil and criminal matters, on

Jury; who constitute.]-The first twelve persons who appear, as their names are drawn and called, who are proved as indifferent between the parties, and are not discharged or excused, must be sworn; and constitute the jury to try the issue. (Code Crim. Proc., § 387.)

Improper treatment of a juror by court, ground for new trial. Peo. ex rel.
Flaherty v. Neilson, 22 Hun, 1.

TRIAL JURORS IN CITY AND COUNTY OF NEW YORK.

Qualifications.-The "New York City Consolidation Act" of 1882, declares that, in order to be qualified to serve, as a trial juror, in a court in the city and county of New York, a person must be:

1. A male citizen of the United States, and a resident of that city and county.

2. Not less than twenty-one, nor more than seventy years of age.

3. The owner, in his own right, of real or personal property of the value of $250; or the husband of a woman who is the owner, in her own right, of real or personal property of that value.

4. In the possession of his natural faculties, and not infirm or decrepit.

5. Free from all legal exceptions; intelligent; of sound mind and good character; and able to read and write the English language understandingly. (Laws of 1882, ch. 410, § 1652.)

Who deemed a resident.]—A person dwelling or lodging in the city and county of New York, for the greater part of the time, between the 1st day of October and the 30th day of June next thereafter, is a resident of that city and county for that jury year, within the meaning of the last section; and it is not necessary that he should have been assessed or should have voted there. (Id., § 1653.)

Who are exempt.]-Section 1654 enumerates the persons who, although qualified, are entitled to an exemption from service as trial jurors, upon claiming such exemption.

Evidence of right to exemption.]-Sections 1655 and 1656, specify the evidence to be given of the right to exemption.

Jury year; length of service]-By section 1657, the jury year commences on the 1st day of October, and the length of service required and allowed in each jury year is specified. A person can not serve as a trial juror in courts of record at more than two terms in a jury year.

Excusing and discharging from attendance.]—The judge holding a term may, in his discretion, excuse a trial juror from service at that term, for not more than three days at a time, where the exigencies of his business require his temporary exemption. The judge may also discharge for the term one or more jurors notified and attending, whose attendance is not required for the trial of issues at that term. Or he may discharge, until a day certain, one or more jurors, notified and attending, whose attendance will not be required for the trial of issues until that day, etc. (Id., § 1658.)

In other cases juror not to be excused, except on showing certain facts. (Id., § 1659.)

Duty of commissioner of jurors. ]—Trial jurors must be selected by the commissioner of jurors, who must alone decide upon their qualifications and exemptions, except as otherwise expressly prescribed in this title. But this section does not impair the right to challenge a particular juror at the trial. The commissioner may issue to a person entitled to an exemption a certificate of that fact, which exempts the person to whom it is granted from jury duty during the time limited therein, etc. (Id., § 1663.)

Subsequent sections of the statute contain various other provisions respecting trial jurors in the city and county of New York-such as drawing, notifying, attendance, fines, bribery, false certificates of physicians, etc., etc.

such evidence as the court shall submit to them as competent. But they are not, in general, either in civil or criminal cases, judges of the law. They are bound to find the law, as it is propounded to them by the court. They may, indeed, find a general verdict includ

ing both law and fact; but if, in such verdict, they find [*354] the law contrary to the instructions of *the court, they thereby violate their oath. () The same thing was lately held by Story, J., in a capital case. He stated, as the opinion of his whole professional life, that the jury are no more judges of the law in a capital or other criminal case, upon the plea of not guilty, than they are in every civil case tried upon the general issue. He said that in each case they had the physical power, but not the moral right, to decide the law according to their own notions or pleasure. That it is the duty of the court to instruct them as to the law; and of the jury to follow such instruction. That if the jury were to decide it would render the law uncertain; it would be almost impracticable to learn what they did decide; the court would have no right to review their decision; that every person has a right to be tried according to the fixed law of the land. If he thought the jury were judges of the law, he should hold it his duty to abstain from stating the law to them. (i) (4)

(h) Cowen & Hill's Notes to Phil. Ev., 1501. 8 (i) 2 Sumner's Rep., 240, 243. Barb., 603. Blackf., 156. Addis R., 156, 255.

And see 2

(4) In People v. Finnegan (1 Park., 147), the defendant's counsel made the point that the court, on the trial, erred in charging the jury that they were the judges of the law and the fact, and that the only duty of the court was advisory. Held, that this charge was erroneous. That it is only on the trial of indictments for libel that "the jury have the right to determine the law and the fact" (citing Const., art. 1, § 8). That in all other criminal prosecutions, as well as in all civil actions, it is the duty of the court to decide the questions of law, and of the jury to decide the questions of fact, and that the doctrine that the jury are to decide the law, in criminal cases, with the single exception made by our state constitution, can not be supported, either upon principle or by authority.

So also, in Safford v. People (1 Park., 474), Hand, J., says (p. 480), that the better opinion seems to be that the jury are no more judges of the law in criminal than in civil cases; except that a verdict of acquittal is conclusive.

In People v. Pine (2 Barb, 568), Judge Barculo remarks: "It is often said, and has been said in the progress of this trial, that the jury, in criminal cases, are judges of the law, as well as of the facts. If by this is meant that the jury are to assume the prerogative of the court as exercised in civil cases, and adopt their own views of the law without regard to those entertained by the court, I am bound to say to you that such is not the law of the land. This proposition is perfectly untenable, and has been distinctly repudiated on more than one occasion by the judges of the supreme court of the United States. If, however, by this expression is meant merely that whatever decision the jury make, whether of law or fact, in favor of the prisoner, is final and can not be reviewed-then the declaration is true. This is all that can be properly understood by the phrase 'the jury are judges of the law as well as fact;' and the reason of this is, that the constitution does not permit a new trial in case of acquittal. But if the decision of the jury should be against a prisoner, contrary to

Challenges to jurors at common law, and under the statutes prior to the Codes, were of two kinds as regards the parties taking them; first, challenges by the prisoner, second, challenges by the prosecuting attorney. Challenges by the prisoner are of two kinds; first, peremptory, second, for cause. Challenges for cause are, first, to the array, second, to the polls. Challenges to the array and to the polls may be taken both by the prisoner and the prosecuting attorney. Challenge to the array is in respect of some supposed partiality or irregularity in the officer making the return or drawing the jury; and where that fails, recourse may be had to the challenge to the polls. Challenge to the array is either principal or for favor; the former, being for some gross and palpable partiality, is decisive: the latter being, generally, for a supposed partiality arising out of some relationship or interest existing between the juror challenged and the returning officer, is investigated by triors, whose verdict is decisive. (5)

the law as laid down by the court, a remedy can be applied. In this state, the jury is presumed to receive the law from the court." (See also, Townsend v. State, 2 Blackf., 156; United States v. Wilson, 1 Bald., 78; Cow. and Hill's Notes, 1501; Duffy v. People, 26 N. Y., 588.)

The Code of Criminal Procedure provides that—

On the trial of an indictment for a libel, the jury have the right to determine the law and the fact. (§ 418.)

Const. of N. Y., art. 1, § 8.

In all other cases, court to decide questions of law, subject to right of defendant to except.]-On the trial of an indictment for any other crime than libel, questions of law are to be decided by the court, saving the right of the defendant to except; questions of fact by the jury. And although the jury have the power to find a general verdict, which includes questions of law as well as of fact, they are bound, nevertheless, to receive as law what is laid down as such by the court. (§ 419.)

See Peo. v. Pine, 2 Barb., 566.

Charge to jury.]-In charging the jury, the court must state to them, all matters of law which it thinks necessary for their information in giving their verdict; and must, if requested, in addition to what it may deem its duty to say, inform the jury that they are the exclusive judges of all questions of fact. ($ 420.)

(5) On a trial for murder, the counsel for the prisoner interposed an unverified written challenge to the array, in which he referred to each step necessary to the selecting and drawing of the jury, and alleged that it had not been done in the manner and form required by the statute. An oral demurrer, by the district attorney, was sustained by the court, in part at least, because the challenge was unverified.

Challenge to the polls is also principal or for favor. Principal challenge to the polls may be first, propter defectum, as alienage, infancy, old age, want of property, or other necessary qualification; second, propter affectum, or partiality, actual or presumed, and which will be presumed from relationship to either party; and third, prop ter delictum, or infamy arising from attainder or conviction of treason, felony, perjury, or any infamous offense. Challenge to the polls for favor is where, though the juror is not so palpably partial as to give cause for a principal challenge, yet there are reasonable grounds to suspect that he will act under some undue prejudice or bias.

The only proper time for taking challenges, either to the array or to the polls, is after a full jury have been called, and have made their appearance, and before they are sworn. A challenge to the array must be in writing; because it forms a part of the [*355] record; but not so as to a challenge * to the polls. A challenge to the array may be tried in the mode which the court in their discretion may think fit to direct. In the case of a principal challenge to the polls, for manifest partiality, it is sufficient if the ground is made out to the satisfaction of the court, without any further investigation. A challenge to the polls for favor is left to triors, who are sworn, and the trial proceeds by witnesses before

After three jurors had been drawn and examined, the court offered to allow the prisoner's counsel to renew his special plea, leaving it unverified. The district attorney offered to traverse it, and consented to proceed at once to the trial of the issue thus joined, and to allow the jurors drawn to stand aside. To this proposition the prisoner's counsel refused to consent, and the trial proceeded. Held that the offer of the court and district attorney took away the right of the prisoner to insist that he was injured, in fact, by the action of the court, and compelled him to stand upon errors of law strictissimi juris. (Cox v. People, 19 Hun, 430; aff'd 80 N. Y., 500.) That the mere unaccepted proposition did not have the effect of curing any error that might have been committed in sustaining the demurrer. (Id.) That the fact that the challenge was unverified, was not a ground of demurrer. But that the demurrer was properly sustained, as the challenge was bad, because of the alternative character of its allegations; they impliedly admitting that every thing, not done in the particular mode required by the statute, might nevertheless have been done in some other way; which the law, to prevent a failure of justice, would accept as sufficient. (Id.)

On a challenge to the array, where jurors to supply a deficiency are drawn, under the act of 1861, the court will presume, until the contrary is shown, that the clerk has discharged his duty in putting into the box the names of jurors on the last list, required by law to be made. (Gardiner v. People, 6 Park., 158.)

Upon the trial of an indictment for murder, the prisoner challenged the array of jurors on the ground that an order having been made, requiring the drawing of additional jurors, one of the boxes required to be kept by the clerk, i. e., the one containing the names of jurors who had attended a term of the court, and served, had not been kept, and was not brought into court as required by the Code of Civil Procedure. (§ 1059.) The challenge was sustained. The prisoner thereupon withdrew it, a jury was impanelled, and the trial proceeded. Held, that the prisoner could withdraw his challenge, and that by doing so, he waived the irregularity. (Pierson v. People, 79 N. Y., 424.)