Statement of case.

Notwithstanding the provision of said Code (§ 376), declaring that an existing opinion or impression as to the guilt or innocence of the defendant in a criminal trial shall not be a sufficient ground of challenge to a juror, if he can declare, on oath, his belief that such opinion or inference will not influence his verdict, and that he can render an impartial verdict according to the evidence, an existing opinion, by a person called as a juror, of the guilt or innocence of the accused is prima facie a disqualification, and the declaration required of the juror to avoid the objection must be certain and unequivocal.

It is not enough that there are detached statements which, if alone considered, would seem to meet the statutory requirement, if, on construing the whole statement, it is apparent that the juror is not able to express an absolute belief that his opinion will not influence his verdict, he is disqualified.

Where, therefore, a person called as a juror, on a challenge for bias, testified in substance that he had an opinion as to the guilt of the accused, which amounted to a conviction, founded upon a careful perusal of the testimony given on a former trial, and where his declaration of his belief that he could render an impartial verdict was not absolute, but was qualified by a doubt. Held, that, as matter of law, the overruling of the challenge was error; and that the error was not cured by the fact that the defendant had not exhausted his peremptory challenges and might have excluded the juror.

People v. Casey (96 N. Y. 115); People v. Carpenter (102 id. 238) limited. The provision of said Code (§ 455, sub. 2), permitting exceptions to be taken to a decision "allowing or disallowing such challenge," is not limited to exceptions to rulings as to jurors who participated in the verdict. It does not permit an exception to a ruling admitting or rejecting testimony on a trial of the challenge, except where the challenge is overruled and the juror participates in the verdict, but permits an excep tion to the erroneous rejection of a juror, and such an exception is reviewable on appeal.

Under said Code (§ 485), proceedings on challenges to jurors who partici pated in the verdict must be incorporated in the judgment-roll, and the decision made thereon may be reviewed on exceptions as of course; but if the defendant desires a review of his exceptions where the challenge was sustained, he must incorporate them in a bill of exceptions to be settled and annexed to the roll. (§ 456.)

As to whether the erroneous exclusion of a single juror from the panel by mistake or inadvertence, where it can be fairly inferred that no injury resulted to the defendant, may be disregarded, quære.

The fact that a person called as a juror is well acquainted with one of the counsel for the defendant, and had advised with him on some occasion not connected with the case on trial, is not a cause of challenge for bias (Code of Crim. Pro. §§ 376, 377, 378), and the exclusion of a juror on such a ground is error, for which an exception lies.

Statement of case.

Upon the trial of an indictment for bribery, it was alleged, on the part of the prosecution, that defendant, as a member of the board of aldermen of the city of New York, in combination with other members of the board and for a sum of money paid to them for their votes, voted for a resolution granting to a street railroad corporation the right to lay its tracks on Broadway in said city. The prosecution was allowed to prove, under objection and exception, that another of the aldermen, alleged to have been engaged in the conspiracy, had been indicted for bribery and had not been brought to trial; also, that four persons implicated in the bribery were at the time of the trial, and for some time previous thereto, had been out of the jurisdiction and were residing in Canada. This proof was offered as corroborative of two of the alleged conspirators who had been called as witnesses for the prosecution and had testified to facts showing the commission of the crime charged. Held, that the evidence was incompetent for this or any other purpose. While the acts and declarations of a co-conspirator, done in furtherance and execution of the common design, are admissible against a conspirator on trial for the common offense, when the conspiracy is at an end and its purpose accomplished or abandoned, no subsequent act or declaration of one of the conspirators is admissible against another. Defendant proved that one of the conspirators so testifying for the prosecution had been called as a witness before a committee of the state senate some two years after the accomplishment of the alleged conspiracy, and had then denied, under oath, the existence of the facts testified to by him on the trial. The prosecution was permitted to prove, under objection and exception, that just before his examination before said committee he had a consultation with another of the alleged conspirators and was directed by the latter as to how he should testify. Held, error. (Argued June 19, 1888; decided October 2, 1888.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 18, 1888, which affirmed a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, entered upon a verdict convicting the defendant of the crime of bribery.

The facts, so far as material to the questions discussed, are stated in the opinion.

Benjamin F. Tracy for appellant. The jury intended by section 2, article 1 of the Constitution, which declares that “a trial by jury in all cases in which it has been heretofore used shall remain inviolate forever," is a common-law jury of

Statement of case.

twelve men. (Wynehamer v. People, 13 N. Y. 378; Stokes v. People, 53 id. 171.) The jury of twelve who are to try the case must be selected by lot from the whole panel. (Code Civ. Pro. $ 1085, 1086, 1087, 1103.) The jury must be selected and impanneled in the manner specified by the statute. The court has no power to select a jury, directly or indirectly. It cannot set aside jurors who are qualified, and thus limit the number from which the jury are to be selected. (Hildreth v. City of Troy, 101 N. Y. 234.) The question here involved may be reviewed on appeal. (Code Crim. Pro. § 455.) The right of peremptory challenge given to an accused person is a substantial right. (2 Cooley's Black. 352.) The defendant's right to a peremptory challenge has been waived when the juror has been passed over to the court or the prosecution. (Comm. v. Rogers, 7 Met. 500; U. S. v. Hanway, 2 Wall. Jr. 143; State v. Potter, 18 Conn. 166; State v. Cameron, 2 Chand. 172; Patton v. Ash, 2 S. & R. 123.) Where a juror has formed an opinion touching the guilt or innocence of the defendant, he is disqualified, unless he testifies to two facts: First, that he believes that such opinion or impression will not influence his verdict; and, second, that he can render an impartial verdict according to the evidence. (People v. Casey, 96 N. Y. 115–122.) If the juror challenged testifies to the two facts above stated, literally or in substance, his competency becomes a question of fact to be determined in the first instance by the trial judge, subject to review by the appellate court. (Balbo v. People, 80 N. Y. 484-494; Greenfield v. People, 74 id. 277; People v. Bodine, 1 Denio, 281; 4 Bl. Com. 353; 2 D. & B. 205; 4 Ohio, 350; People v. Casey, 96 N. Y. 193; People v. Carpenter, 102 id. 238, 244; Freeman v. People, 4 Denio, 31.) It was the right of the defendant to know whether the jurymen who were to try him were interested in opposing the grant for which he had voted. (Crim. Code, § 455; People v. Bodine, 1 Denio, 281, 310; People v. Honeyman, 3 id. 121; 1 Robt. [Va.] 736, 742; People v. Freeman, 4 Denio, 31; Friery v. People, 2 Abb. Ct. of App. Dec. 220; 54 Barb. 331.) The

Statement of case.

court erred in admitting the evidence to show that certain of the aldermen alleged to have been of the "combine" of thirteen, were, at the time of the trial, and for some time previous thereto had been, absent from the jurisdiction of the court, and residing in Canada. (Sharp Case, 107 N. Y. 464; 1 Whar. Crim. Law [7th ed.] § 703; 1 Greenl. Ev. § 111; 3 id. § 94; People v. Davis, 56 N. Y. 95, 103; N. Y. Guar. & Indem. Co. v. Gleason, 78 id. 503; 1 Taylor's Ev. §§ 527, 530, 542; 3 Greenl. Ev. § 94; Anderson v. R. Co., 54 N. Y. 334; Hutchins v. Hutchins, 98 id. 56.) The error could not be cured by striking out the evidence even if that had been done. (Newton v. State, 21 Fla. 53; Erben v. Lorillard, 19 N. Y. 299; Furst v. R. R. Co., 72 id. 542; Arthur v. Griswold, 55 id. 400.) The court erred in charging the jury that evidence of good character of itself does not tend to prove that a man is not guilty of an offense. (People v. Lamb, 2 Keyes, 378; Remsen v. People, 43 N. Y. 6; People v. Wileman, 44 Hun, 187.) A juror is to examine and appreciate the credibility of witnesses according to his best knowledge and observation in the light of experience and the laws of human action. (1 Cow. [II. & D. notes], 599.) Testimony, therefore, will for either purpose be in general regarded as accurate and true, unless there is reason from its own inherent qualities, or from extrinsic circumstances, for forming an opposite conclusion. (Reid's Inquiry into the Human Mind, § 24; Elwood v. W. U. Tel. Co., 45 N. Y. 549; Newton v. Pope, 1 Cow. 109.) A witness, though uncontradicted and unimpeached by impeaching testimony, may be disbelieved when his testimony is intrinsically improbable. (Stilwell v. Carpenter [Ct. of App.] 2 Abb. N. C. 257; Kavanah v. Wilson, 70 N. Y. 179; Wait v. McNeil, 7 Mass. 260; Harding v. Brooks, 5 Pick. 244.) Where a witness testifies at one time, in direct contradiction to the testimony given by him at another in relation to the same transaction, and admits that on one of these occasions his testimony was knowingly and deliberately false, he is not entitled to credit and his evidence should be disregarded (Patterson v.

Statement of case.

Dunlap, 5 Cow. 243; People v. Evans, 40 N. Y. 1; Deering v. Metcalf, 74 id. 501; People v. Petmecky, 99 id. 415.) The court erred in refusing to charge: "That if the jury believe that any witness upon this trial has willfully testified falsely touching any material matter, they are at liberty to disregard his entire evidence." (Wilkins v. Earle, 44 N. Y. 172; Dunlap v. Patterson, 5 Cow. 243; People v. Petmecky, 99 N. Y. 415; Roth v. Wells, 29 id. 471.) It is the business of the court to see that a proper direction be given to the jury in point of law upon the evidence. (People v. Enoch, 13 Wend. 164.) The judge ought to respond to each proposition, provided it presents a question of law bearing upon the evidence. (Zabriskie v. Smith, 13 N. Y. 338.) It is the duty of the court to instruct the jury as to the legal effect of conclusions of fact which they are au liberty to deduce from the evidence. (Foster v. People, 50 N. Y. 598.) A party is entitled to a distinct charge without qualification if entitled at all. (Meyer v. Clark, 45 N. Y. 285-289.) It is the legal right of counsel on the trial of an action to submit propositions of law bearing upon the evidence, and it is the duty of the court to instruct the jury on each proposition. The denial of such right is the subject of exception and review upon appeal. (Chapman v. McCormick, 86 N. Y. 479; Lamar v. State, 64 Miss. 428; Aldridge v. State, 59 id. 250.)

McKenzie Semple for respondent. A defendant's constitutional right to demand that the jury shall be composed of fair, impartial and competent citizens is not impaired by the exclusion of jurors, though never so impartial, as long as impartial jurors remain to try the case. (Thompson & Merriam on Juries, 228, 229; Grisson v. State, 2 Texas App. 376, 378; Code of Crim. Pro. § 455.) The ruling of the court in allowing or disallowing a challenge to a juror who did not participate in the verdict is not reviewable upon appeal. (Code Crim. Pro. §§ 455, 485, 517.) The court did not err in overruling any of the defendant's several challenges to the several jurors who participated in the verdict. (People v. Buddensiek, SICKELS-VOL. LXV. 37