THE TRIAL. IMPANNELING THE JURY. The cause having been called before McCUE, J., and sent before NEILSON, Ch. J., the examination of the proposed jurors was commenced. [The circumstances relative to the calling of the cause, the proceedings had thereon, the transfer of it from part 1 of the court, and the exceptions which were taken in respect thereto, are omitted, as not necessary for the purposes of this publication; and the numbering of the days in the margin accordingly commences with the proceedings actually reported. In the following account of the impanneling of the jury, some examinations which raised no question of law, and conversation not material to such questions, are omitted without further indication.] The Clerk first called from the combined panels-WILLIAM HARKNESS — and swore him to truly answer such questions as might be put to him touching his qualifications as a juror in this cause. Mr. Shearman.-We desire to suggest, if your Honor please, that in order to avoid the responsibility or annoyance of each side raising somewhat formal objections to the jurors, some of whom may think that they ought to be sufficiently well known to avoid the necessity of putting such questions to them, that, if it meets the approbation of the other side, it might be as well for your Honor to put certain formal questions to every juror, such as his age, residence, occupation, citizenship, whether he has heard of this case before, and whether he has formed and expressed an opinion.* JUDGE NEILSON.-I appreciate the delicacy of counsel in the suggestion made, but jurors will all understand that it is the duty of counsel to put such questions. Even the best known citizen that may be called will understand that it is the duty of counsel to put such questions to him, and I think that counsel had better put the interrogatories themselves. * To avoid the necessity of challenging every juror, the court may be asked to propose uniform questions to every juror; and after their answers, either party may challenge at his option. "It is a frequent thing for the court to prescribe certain questions to be put to every juror, which he is to answer; and no specific cause of challenge is stated until these answers are given." This usage has been adopted on some occasions in the United States courts, and probably prevails throughout the State. Per MITCHELL, J., in Carnal v. People (1 Park Cr. 272, 282); Supreme Court, 1851, EDMONDS, MITCHELL, and KING, JJ. In Probst's Case (Trial for Murder, of Dearing, Official Report, Oyer & T., Phil., 1866), a juror had been examined, and said he had formed an opinion; and counsel insisted that he was incompetent. ALLISON, P. J., put the question : "Notwithstanding the opinion [or, impression] that you have formed, can you enter the jury-box and decide the guilt or innocence of the defendant upon the evidence which may be submitted to you, and upon that alone, uninfluenced by the impression or opinion which you say you have formed of the guilt or innocence of the defendant?" The juror answering in the affirmative, the challenge was withdrawn, and the juror accepted. Mr. Beach.-1 dissent from the idea that this duty should be assumed by the court. For myself, I feel no delicacy in examining any gentleman who may be called as a juror, both as to the formal and meritorious questions going to his qualifications as a juror, whenever I shall deem it necessary. This juror has been sworn as upon a challenge for principal cause. I do not know who has interposed the challenge. We find it interposed. But I have no objection to each juror being so sworn, as he is called, to answer questions as to challenge for principal cause, and as to the favor, both. JUDGE NEILSON. --That will be more convenient. Mr. Evarts. Our view is that the counsel for the plaintiff has to determine first whether he will challenge the juror and put interrogatories.* WILLIAM HARKNESS called. Counsel for the plaintiff not interposing any challenge, Mr. Shearman challenged for principal cause. Q. State your age and place of residence? A. I am 35 years of age; I reside at No. 127 St. Felix-street. Q. What is your occupation? A. The business of painting and paper-hanging. Q. Are you acquainted with either of the parties to this suit? A. I am not, sir. Q. Have you heard of the controversy which forms the subject of this suit? A. I have. Q. How long ago? A. From the very commencement of the publication in the papers. Q. To what publication do you refer as the first? A. I disremember what the first publication was; I think it was the publication of a statement of Mr. Tilton which was published in a paper here; I think that was the first. Q. Do you refer to his letter to Dr. Bacon? A. I think I do. Q. Then you never read the Woodhull-Claflin paper? A. I heard of it, but never took any notice of it to read about it; the first I took notice of particularly was this letter.† Q. Did you not inform yourself of the substance of the story contained in the Woodhull-Claflin paper? A. No, sir. Q. Prior to the publication of this letter of the plaintiff to Dr. Bacon, you were not aware that there was any such charge or not; the charge made by the plaintiff against the defendant? A. No, sir; more than what I saw in the paper. I did not take particular notice of it. Q. Have you formed any opinion upon that subject? A. I have. Q. Have you expressed that opinion? A. I have. JUDGE NEILSON.-Unless counsel enlighten me to the contrary, I think this juror should stand aside. * It is immaterial in civil cases which party challenges first. In 1 Cow. 439, Note, Cowen also says "that the one who first begins must finish all his chal lenges before the other begins; otherwise he is precluded from making any further challenges." But this is not according to the present practice. In criminal cases the prisoner has the first right of challenge. Rex v. Brandreth (32 How. St. Tr. 774); Macfarland's Tr. (8 Abb. Pr. N. S. 57, 58). In the Macfarland case it was assigned as ground of challenge to the favor that the juror sympathized with considerations which entered into the prosecution, and that he had a bias in favor of persons on the side of the prosecution. Jurors were accordingly questioned as to the Astor House marriage, and their acquaintance with Mr. Frothingham. Mr. Beach.-Is your opinion formed on what you read in the newspapers? A. Yes, sir. Q. Is that a fixed and definite opinion that would disqualify you from passing upon this case on the evidence and the law as given by the court, according to your oath? A. No, sir. Q. Do you think that you could hear this case fairly and impartially, and under the instructions of the court as to the law, decide it according to the evidence? A. I think I could, sir. Mr. Evarts.-That does not remove the objection. We are not called upon to remove an opinion that is formed. The law decides, I think, that this juror is not impartial, and his own opinion that he might or might not come to a different conclusion on the law and the evidence does not reinstate him in that impartial attitude toward the case. Mr. Beach.-The counsel, I think, combines the two forms of challenges. Whatever may be the effect of this opinion upon a challenge to the favor, upon a challenge to the principal cause I understand the rule to be settled that an opinion formed and expressed on the reading of a newspaper, not of a definite and fixed character, in regard to which the juror testifies that he can pass upon the evidence under the instructions of the court as to the law, without being influenced by it, is not a disqualification upon the challenge for principal cause. I do not know, sir, that that is a question which is necessary to be pressed. I am quite willing that the cause of disqualification, where a challenge is interposed to the favor, may be considered upon the challenge for principal cause.* *Where strict practice is pursued, a challenge, to be in proper form, should specify whether it is for principal cause or to the favor. Freeman v. People (4 Den. 9). But to omit the statement or to err in it, is not necessarily fatal unless the objection is taken at the time. People v. Mallon (3 Lans. 224); People v. Christie (2 Park. Cr. 579). And after a challenge for principal cause on a ground involving alleged bias, has been overruled, the same party may challenge the same juror to the favor, and examine him as to the same matter. Carnal v. People (1 Park. Cr. 272). All causes for principal challenge relied on by one party must be taken together at one time; and all causes for challenge to the favor, relied on by one party must be taken together and tried at one time, excepting fresh causes arising after trial of those first assigned. Carnal v. People (1 Park. Cr. 272). By the New York Statute of 1873, all challenges of jurors, both in civil and criminal cases, shall be tried and determined by the court only. Either party may except to such determination, and upon a writ of error or certiorari, the court may review any such decision the same as other questions arising upon the trial. Laws of 1873, ch. 427, § 1. This statute has not dispensed with the distinction in substance and in form between the two classes of challenges. Tweed's Trial, DAVIS J. In strict regularity the challenging party should state the cause of challenge, so that when it goes upon the record the other party may demur or traverse. If without formal plea or demurrer he adduces evidence tending to disprove the challenge he is treated as having joined issue on it. People v. Mather (4 Wend. 229, 240). The rule stated in some of the cases, Freeman v. People (4 Den. 9), and amplified in Wait's Practice, vol. 3, p. 107, that whichever class the challenge belongs to, the ground of it must be distinctly assigned in interposing the challenge, is not enforced in practice. The court may require it, but it is not usually required; and if not required the challenge is good without assigning a ground. Carnal v. People (1 Park. Cr. 272), and authorities there collected. And assigning one ground of bias does not preclude the challenging party from proving another. Thorn's Case (4 City H. Rec. 81). JUDGE NEILSON.--That will save time. I think that this juror must stand aside. The Clerk then called CHARLES E. FOSTER. principal cause. Sworn on the challenge for Mr. Evarts.--Our understanding of the law is that the plaintiff is first to determine whether he will challenge. JUDGE NEILSON.-I think that is so, gentlemen, the vital thing all the time being to get at the merits of the juror. Mr. Beach.-Q. Where is your residence? A. In Cumberland-street. Q. Have you read the publications about this controversy A. I read very little of it. I have been abroad. Q. When did you go abroad? A. Last April, and I returned in the Fall. Q. Have you read any of the publications connected with this case? A. Very little. Q. What publications have you read? A. I can not recall anything but a general idea. Q. Have you read any of the statements made by other persons? A. I only know the case by hearsay. Q. Have you conversed with any other persons about it? A. Not particularly that I remember; I may have done so. Q. Since you came home did you have any conversation with any person on the subject-matter of this trial? A. No, sir. Q. Have you read any of the statements of Mr. Tilton? A. I have not. Q. Or of Mr. Beecher? A. I have not. Q. Did you read the report of the Committee? A. No, sir. Q. Are you acquainted with either of these parties? A. No, sir. Q. Have you formed any opinion in regard to the merits of this controversy A. I have not. Q. Have you expressed any impression as to the guilt or innocence of the defendant? I don't think I have; I may have done so. Q. What is your age? A. Twenty-three years. Q. Are you married? A. I am not. Q. Do you belong to any religious denomination? A. I belong to Dr. Cuyler's church. * Membership of the same church or society as one of the parties is not ground of challenge for principal cause, but is competent to be proved in support of a challenge to the favor, and it will be for the judge to say whether under the circumstances he deems the juror indifferent. See following authorities. Purple v. Horton, 13 Wend. 9; (Supreme Ct. 1834, opinion by SAVAGE, J.) Action for slander. Held, That a Freemason is not disqualified as matter of principal cause from sitting as a juror, where another Mason is a party, even though they be of the same degree. Blackstone's statement, that being of the same society or corporation, is enough to exclude, is not as a general rule sound, in the present state of society. In the same case, a challenge on the same ground was submitted to triers who heard the oath which is taken by all Masons to aid each other, &c., and they held the juror indifferent. Held, no error. In the Morgan Trials on an indictment for conspiracy to kidnap, one of the trials reported as People v. Mather, 4 Wend. 229, a juror was challenged for principal cause on the ground that he was a member of the society of Freemasons and of the degree of Royal Arch; and reliance was placed on the rule in Black Q. Do you happen to have read anything of the proceedings of the council of the church? A. I think I glanced over the paper once or twice. I don't remember the particulars. Q. Do you feel no sufficient interest in this question to read the proceedings published in the newspapers? A. I was away so long that I took no interest. I have been abroad, off and on, for five years. Q. I am requested to ask you whether you are acquainted with Alderman Whitney, in your vicinity? A. I am. Q. Have you had any conversation with him in regard to the case? A. No, sir. Q. When were you summoned as a juror? A. I think on Friday morn ing-New Year's morning. Q. Since that time you have conversed with no person in regard to your having been summoned? A. I have mentioned the fact to several persons. Q. You had no conversation following the mentioning of that fact ? No, sir. Q. To whom did you mention it? A. To a great many people; I don't remember particularly. Q. This service of the summons, you say, was by a copy left at your residence? A. It was handed to me New Year's morning. Q. Who handed it to you? A. The servant girl. Q. Who was present? A. My father. Q. Have you heard any expression of opinion in regard to this case? A. I have. Q. From whom? A. My father, and I think I have from several others. Q. Those expressions of opinion from your own family, did they arise in the subject of conversation about this case, or from previous conversation with your family? A. Yes, I think they did; they read the papers. Q. They read the papers and discussed the contents, and expressed an opinion? A. They did. Q. Did you make any reply or comment upon this? A. I think I did. Q. Was it favorable or unfavorable to one side or the other? A. I think they were favorable to one side. Q. And you expressed an opinion favorably to one side? A. I am scarcely able to express an opinion. Q. But you did? A. I did. Q. And that was founded on communications made by, or conversations had upon the subject of this controversy with your family? A. It was. Q. From those communications made, you expressed an opinion? A. Yes, sir. Q. Do you entertain that opinion now? A. I am hardly capable of saying whether I have an opinion or not. I see nothing to change my opinion. Q. Was the opinion you expressed honest at the time? A. I think it was. stone. The court held that "society" meant such as are recognized by law. Mr. Spencer offered to prove that the society of which the juror and defendant were both members was incorporated. After argument the court overruled the objec tion; and on trial of a challenge to the favor, the obligations of Freemasonry having been proved, the triers rejected the juror. Edu. Jurym. G. 95. |