of the justices of the supreme court, or of the circuit judges, or by the first judge of the court of common pleas, together with the mayor, recorder and aldermen of that city, or with any two of them. In all the other counties of this state, by a justice of the supreme court, or a circuit judge, together with at least two of the judges of the county courts. In the counties of Albany, Columbia and Rensselaer, the mayor, recorder and aldermen of the respective cities therein, or any two of them, may sit and act in the court of oyer and terminer, with, or instead of, the county judges. In the county of Schenectady, the mayor and aldermen of the city of Schenectady, or any two of them, may sit and act in such court with or instead of the county judges. (b) Each court of oyer and terminer has power to inquire, by the oath of good and lawful men of the same county, of all crimes and misdemeanors committed or triable in such county; to hear and determine all such crimes and misdemeanors; and to deliver the jails of the said county or city and county, according to law, of all prisoners therein.(c) Every court of oyer and terminer has power also to try all indictments found in the court of general sessions of the peace of the same county, or city and county, which shall have been sent by order of such court of general sessions to, and received by the said court of oyer and terminer, or which shall have been removed into the said court of oyer and terminer; and which, in the opinion of the said court of oyer and terminer, may be proper to be tried therein. (d) Courts of general sessions of the peace.] Any three of the judges of the county courts of each county have power to hold courts of general sessions therein. (e) The jurisdiction of these courts, (except in the city of New-York,) is limited to a certain class of offences, viz. all crimes and misdemeanors not punishable with death or imprisonment in the state prison for life.(ƒ) The several courts of general sessions shall send all indictments for offences not triable therein, to the next court of oyer and terminer in such county. And they shall try such indictments for offences triable in the general sessions, as may be sent back, without trial, by the court of oyer and terminer. (g) Courts of general sessions have no jurisdiction of the offence of rape. Therefore, where a prisoner is indicted at the sessions for a rape, and for an assault with intent to commit a rape, and the district attorney pro (b) 2 R. S. 204, § 28. (c) Id. 205, § 29. (d) Id. § 205, § 38. (e) Id. 208, § 3. (f) Id. § 5, sub. 2. (g) Id. §§ 6, 7. ceeds to trial without entering a nolle prosequi on the counts charging a rape, and the jury convict the defendant of an assault and battery only, judgment cannot be rendered-the issue being general, on all the counts, and the verdict rendered on that issue.(h) In the city and county of New-York, the first judge of the county courts, and the mayor, recorder, and aldermen of the said city, or any three of them, of whom the said first judge, mayor or recorder shall always be one, shall have power to hold courts of general sessions in and for the said city and county. But it is the special duty of the recorder of the said city to hold such court of general sessions. (i) The said court of general sessions possesses the like powers as similar courts in other counties; and, in addition thereto, it has power, when the first judge shall preside, to hear, try, and determine any indictment for any crime punishable by imprisonment for life. And the court has the same power when the mayor or recorder presiding is of the degree of counsellor in the supreme court of at least three years' standing. (k) Mayors' courts.] The mayors' courts, usually, have no power to try indictments. Those courts in the city of Albany and Rochester are exceptions, however. The mayor's court of the city of Albany possesses the like powers, and has the same jurisdiction, over crimes and misdemeanors arising within the city of Albany which the court of general sessions of the peace of the county of Albany has; and in addition thereto, in case the recorder be of the degree of counsellor at law of at least three years' standing, in the supreme court, has power to hear, try, and determine indictments for any crimes punishable by imprisonment for life. (1) When any indictment shall be found in the court of general sessions or court of oyer and terminer of the county of Monroe, triable by a court of special sessions, for any offence committed in the city of Rochester, and the trial of the same shall be postponed, if any defendant in such indictment shall be in actual custody, the said court of general sessions or court of oyer and terminer may order the said indictment to be transmitted to the mayor's court of the city of Rochester, &c; and the said mayor's court shall proceed thereon in the same manner as the said court of general sessions might have done, and the proceedings thereon shall (h) 19 Wend. 192, 201. (i) 2 R. S. 216, §§ 27, 28. But by the act of May 14, 1840, (Laws of 1840, p. 257,) the court of genernl sessions in the city and county of New-York shall hereafter be held, and all the powers thereof exercised by the recorder of the city of New-York and two judges to be appointed by the governor and senate, who shall be called and known as the associate judges of the court of general sessions of the city and county of New-York. (k) 2 R. S. 216, § 29. (1) 2 R. S. 2d ed. 147, § 4. in all respects be the same as on indictments in the said court of general sessions.(m) Whenever any indictment shall be found in the said court of general sessions, or court of oyer and terminer, for any offence committed in the said city of Rochester, triable in the said mayor's court, when certified by a magistrate, (as provided by another section,) the said court of general sessions or court of oyer and terminer may direct the same to be transmitted to the said mayor's court, who shall proceed therein as provided in the last section.(n) 2d. In what county to be tried.] All issues of fact joined upon any indictment shall be tried by a jury, in the county where such indictment was found, unless for special causes the supreme court shall order an indictment removed into that court, to be tried in some other county.(0) The venue is never changed in a criminal case. But when it appears that an impartial trial cannot be had in the county where the offence is laid, the court will order a suggestion of this fact to be entered on the record, and a venire is then awarded to the sheriff of another county.(p) And such suggestion cannot be made without special leave obtained from the court. A rule directing a criminal case, removed into the supreme court by certiorari, to be tried in a county other than that in which the offence is laid, will not authorize the trial in such county, without such a suggestion on the roll. (q) 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.(r) 3d. Jury, and challenges.] The qualification of jurors, and the manner of selecting names from the assessment roll to be put in the ballot box of jurors in each county, are fixed by the revised statutes.(s) It is also provided, that the jury, for the trial of an indictment, shall be drawn in the same manner as they are drawn in civil cases, except that the defendant in an indictment is entitled to have at least twenty-four names in the box, from which the jury is selected. (t) The jurors returned for a circuit court are to be the jurors for the oyer and terminer, when both courts are held at the same time; and the jurors returned for any court of common pleas are to be the jurors for the court of general sessions appointed to be held at the same time.(u) The same proceedings respecting the impanelling of juries and keep ing them together, which are prescribed by law in civil cases, are also applicable to trials on indictments.(v) No alien is entitled to a jury of part aliens or strangers, for the trial of any indictment whatever.(w) 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 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, including both law and fact; but if, in such verdict, they find the law contrary to the instructions of the court, they thereby violate their oath.(x) 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. (y) Challenges to jurors are 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 (v) 2 R. S. 635, § 14. (w) 2 R. S. 734, § 7. (z) Cowen & Hill's Notes to Phil. Ev. (y) 2 Sumner's Rep. 240, 243. And see 2 Blackf. 156. Addis. R. 156, 255. partiality arising out of some relationship or interest existing between the juror challenged and the returning officer, is investigated by triers, whose verdict is decisive. 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, propter delictum, or infamy arising from attainder or conviction of treason, felony, perjury, or any infamous offence. 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 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 triers, who are sworn, and the trial proceeds by witnesses before them; and their verdict thereon is decisive. (z) Or, the defendant may, by his counsel, consent to substitute the court for triers. But when such consent has been given it cannot afterwards be revoked, and a demand made that the challenge shall be passed upon by triers; especially after the challenge has been passed upon by the court. (a) If by the default of jurors, or challenges, a sufficient number cannot be had of the original panel, a tales may be awarded, as in civil cases, till the number of twelve be sworn. (b) This whole matter of challenges, however, is regulated by the revised statutes, as follows: Every person indicted for any offence is entitled to the same challenges as are allowed in civil cases, cither to the array of jurors, or to individual jurors. And the prosecuting attorney is entitled to the same challenges in behalf of the state, either to the array or to individual jurors, as are allowed to parties in civil cases; and the same proceedings are to be had thereon as in civil actions. (c) Every person arraigned and put upon his trial for any offence punishable with death, or (z) Cro. Cir. Comp. 116, 117. (a) 21 Wend. 509. (b) Cro. Cir. Comp. 117. |