Page images
PDF
EPUB

serving as jurors, by reason of having served as firemen, for the period required by law. When the court shall have discharged the juror for any of the causes above specified, the clerk shall destroy the ballot containing the name of such juror.2

(b.) What Jurors to be Excused.-The court to which any person shall be returned as a juror, shall also excuse any juror from serving at such court whenever it shall appear:

1. That he is a practising physician and has patients requiring his attention..

2. That he is a surrogate or justice of the peace, or executes any other civil office, the duties of which are at the time incon sistent with his attendance as a juror.

3. That he is a teacher in any school, actually employed and serving as such.

4. When for any other reason the interests of the public or of the individual juror will be materially injured by such attendance, or his own health, or that of any member of his family requires his absence from such court.3

In the county of Kings, the court before whom any person is summoned as a juror, may also excuse such person from serving whenever it shall satisfactorily appear:

1 That he has actually performed jury duty under the act for that county within six months next preceding the sitting of such jury, and since the second Monday in August preceding such sitting.

2. That he has actually performed duty as a grand juror since the first Monday in September next preceding the sitting of such jury.

3. That the interests of the public, or of the individual juror, will be materially injured by such attendance, or that his own health or the health of his family requires his absence from such court.'

When any person shall be so excused from serving, his name shall be returned to the box from which it was taken.5

1 Laws 1847, ch. 495, § 13.

22 R. S., 415, § 100.

2 R. S., 416, § 101.

Laws 1858, ch. 322, § 11.

• Idem.

The petit juror desiring to be excused from the performance of jury duty, makes his application to the court, and the same oath is administered to him by the clerk as in the case of a grand juror asking to be excused.1

§ 93. CLERK'S ADDRESS TO PRISONER BEFORE CALLING THE JURY. The prisoner being in court before the trial commences, the clerk of the court addresses the prisoner as follows:

"A B. These good men that you shall now hear called are the jurors, who are to pass between the people of the State of New York and you (or, if in a capital case, to pass upon your life and death); if, therefore, you will challenge them, as they come to the book to be sworn and before they are sworn, you shall be heard."

(The crier then calls the jurors one at a time, as they are drawn by the clerk, and when the juror comes to the stand and is ready to be sworn the clerk says): "Juror, look upon the prisoner; prisoner, look upon the juror."

§ 94. OF CHALLENGES TO THE JURORS.

When the trial is called on, the jurors are to be sworn as they are called, unless challenged by either party. The term challenge is used in law for an exception to the jurors who are returned to pass on a trial.3 These challenges are of two kirds: challenges to the array or to the polls, and each of these is again subdivided into principal challenges and challenges to the favor, and may be taken by the people as well as by the prisoner.

In addition to the above challenges, which are designated as challenges for cause, both the prisoner and the people are also entitled by statute to certain peremptory challenges, without assigning any reason therefor, and to be made or omitted according to the pleasure, will or caprice of either party.

For the sake of convenience we shall first mention the different kinds of challenges allowed to the people and the prisoner respectively, and then discuss the several cases of challenge that may arise.

[blocks in formation]

A challenge for principal cause, and the decision of the court upon it, forms a part of the record, and are reviewable by certiorari.1

And a bill of exceptions will lie to review questions of law raised and decided on a challenge for favor, even though the prisoner had not exhaused the peremptory challenges when the panel was filled.2

§ 95. OF THE KINDS OF CHALLENGE ALLOWED TO THE PEOPLE.

On any trial for any offence punishable by death, or by imprisonment in the State prison for the term of ten years, or for a longer time, the people shall be entitled peremptorily to challenge five of the persons drawn as jurors for such trial, and no more; and on the trial of an indictment for an offence punish. able by imprisonment for a term less than ten years, the people shall be entitled peremptorily to challenge three of the persons drawn as jurors for such trial, and no more.3

It is also provided by statute that nothing in the above provision shall be deemed to prevent any challenges allowed prior to the passage of the same, either to the array of jurors or to the individual jurors.4

The attorney general or district attorney, prosecuting for the people of this State, shall also be entitled to the same challenges in behalf of this State, either to the array or to individual jurors, as are allowed to parties in civil cases; and the same proceedings shall be had thereon as in civil actions.5

It will be observed that the foregoing provisions, in relation to peremptory challenges by the people contained in the act of 1858, are applicable only to cases where the offence is punishable by imprisonment; but upon the trial of misdemeanors, where the punishment may be other than such imprisoment, it would seem that the people have still the right to peremptorily challenge two of the jurors, thus:

Upon an indictment for a nuisance, the district attorney claimed the right peremptorily to challenge two of the jurors,

Freeman v. Peo., 4 Den., 9; 6 Cow, 555; 7 Cow., 108; 4 Wend., 229.
Peo. v. Bodine, 1 Den., 281.

'Laws 1858, ch. 332, § 1.

• Id., § 2.

2 R. S., 734, § 13.

and the court held that, by virtue of the act of April 27, 1847, and the provisions of the Revised Statutes, the people were entitled to the same number of peremptory challenges that are allowed to parties in civil actions.1

§ 96. OF THE KINDS OF CHALLENGE ALLOWED TO THE PRISONER.

Every person arraigned and put on his trial for any offence punishable with death, or with imprisonment in a State prison ten years, or any longer time, shall be entitled peremptorily to challenge twenty of the persons drawn as jurors for such trial, and no more.2

On a preliminary trial of a question of present insanity, it has been held that the defendant is not entitled to peremptory challenges, but that challenges for cause may be made.3

Every person arraigned and put on trial for any offence not punishable with death, or with imprisonment in a State prison ten years, or for a longer time, shall be entitled peremptorily to challenge five of the persons drawn as jurors for such trial, and no more, except that in cases tried in any court of special sessions such right of peremptory challenge shall extend to only. two of said persons' so drawn.4

Every person indicted for any offence shall also be entitled to the same challenges as are allowed in civil cases, either to the array of jurors or to individual jurors.5

And it is further provided by statute that the provision of the statute giving the prisoner the right of peremptory challenge in the cases above stated, shall not be deemed to prevent any challenge theretofore allowed, either to the array or to individual jurors.6

If an offence may be punished by imprisonment in the State prison for ten years, the prisoner is entitled to the peremptory challenge given by the statute in such case; it makes no difference that a less punishment may be imposed in the discretion of the court."

3

4

Turnpike v. The Peo., 9 Barb., 161.2 R. S., 734, § 9.
Freeman v. Peo., Den., 21.

* 2 R. S., 734, § 10; Laws 1847, ch. 134, § 2.

2 R. S., 734, § 12.

Laws 1847, ch. 134, § 3; 2 R. S., 734, § 11. 7 Duel v. The Peo., 4 Den., 91.

It has been said that where several defendants are jointly indicted and tried, each of them is entitled to the number of peremptory challenges allowed by law, and a challenge by one excludes the juror challenged as to all.1

But in this State it has been held that, where two or more persons jointly indicted for murder are tried together, only twenty peremptory challenges can be allowed to all the defendants.2

§ 97. OF CHALLENGES TO THE ARRAY.

By a challenge to the array is meant an objection to all the jurors; not for any defect in them, but for some partiality or default in the officer who selected or arrayed the panel.3 This challenge lies as well for a partiality or default in the clerk of the court as in the sheriff or his under officer.1

As before stated, this challenge is either a principal challenge or a challenge to the favor.5

The grounds of principal challenge are such as the following: Although there may be no personal objection against the sheriff, yet that he has arrayed the panel at the nomination or under the direction of either party; that the officer who makes the array is of kindred or affinity to either party within the ninth degree;7 that the officer is under the distress of either party; that the officer is counsel, attorney, officer or servant of either party; that the clerk, instead of drawing thirty-six, drew seventy-two names-put them in a list and selected thirty-six from them."

8

A challenge to the array will not be allowed on the ground that all persons of a particular fraternity have been excluded from the jury, if those who are returned possess the necessary qualifications.10 Neither is it a good ground of challenge to the array, that the jury was drawn and the panel certified by the

' 12 Wheat., 480; 6 Ohio, 86; 4 Mason, 159; 2 Yerger, 246.

2 Peo. v. Thayer, 1 Park., 395.

3 Blac. Com., 359; 2 Tidd, 779.

Gardner v. Turner, 9 Johns., 260.

[merged small][ocr errors][merged small]

9 John., 260. For other causes of challenge see Bac. Abr., tit. Juries, E, and cases there cited; also Graham's Practice, 2d ed., 301, 2.

10 Peo. v. Jewett, 3 Wend., 314.

« PreviousContinue »