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Opinion of the Court, per ANDREWS, J.

103 N. Y. 487; People v. Carpenter, 102 id. 238.) Even if the court did err in overruling any of the defendant's challenges or in admitting or excluding evidence upon the trial of any of the challenges to any of the jurors who participated in the verdict, such error, if any, is not available, inasmuch as the defendant did not exhaust his peremptory challenges and had four remaining when the jury was sworn. (People v. Carpenter, 102 N. Y. 238.) The right of peremptory challenge was not waived by the failure of the district attorney to challenge peremptorily in the first instance; and the court did not err in allowing the district attorney to challenge the jurors in question at the time and in the manner stated by the defendant in his fourth point. (People v. Carpenter, 102 N. Y. 238.) The ruling of the court in admitting evidence as to the absence from the jurisdiction, of Keenan, Maloney, Dempsey, De Lacey and Sayles, does not constitute such error as would justify a reversal. (People v. Sharp, 107 N. Y. 427.) The court did not err in its instructions to the jury touching the weight and effect to be given to evidence of previous good character. (Stover v. People, 56 N. Y. 319.) The court did not err in refusing to charge the jury, upon the request of the defendant, that if the evidence of a witness is of itself improbable, the jury are at liberty to disregard it, even though such witness is not impeached or contradicted by other testimony. (Salter v. People, 58 N. Y. 357; People v. Richards, 13 Abb. N. C. 370; Moett v. People, 85 N. Y. 373; People v. Mills, 3 N. Y. Crim. R. 184; People v. McAllum, 3 id. 189; Thomp son on Charging the Jury, § 92.) There is no rule of law. which makes it the duty of a jury to disregard the evidence of a competent witness, either because he is an accomplice in the commission of crime or because he admits that he has previously sworn falsely in reference to the same transaction. (People v. O'Neil, 109 N. Y. 251.)

ANDREWS, J. This is one of the series of cases arising on indictments for bribery in connection with the grant of the

Opinion of the Court, per ANDREWS, J.

Broadway Surface Railroad franchise, by the common council of the city of New York, in 1884. The defendant was a member of the board of aldermen and voted for the granting of the franchise. He has been twice tried on the indictment. On the first trial .the jury disagreed, and on the second trial, in November, 1866, he was convicted. The conviction was affirmed on appeal to the General Term of the Supreme Court, and this appeal is from the judgment of affirmance. Exceptions were taken by the defendant on the trial to certain rulings in the proceedings in impanneling the jury, to the admission and rejection of evidence, and to the charge to the jury, and to refusals to charge. The assignments of error are to be considered and decided in view of section 542 of the Code of Criminal Procedure, which requires the appellate court, on an appeal in a criminal case, to "give judgment without regard to technical errors or defects which do not affect the substantial rights of the parties." The questions in respect to the impanneling of the jury will first be considered.

Each juror drawn as he was called, was examined first by the prosecution and then by the defense as to his qualifications as a juror, no formal challenge being interposed by either party, and, unless set aside by the court for bias or other cause, took his seat in the box, but without being then sworn as a juror in the case. Neither party exercised the right of peremptory challenge until after the box was full. The People then challenged peremptorily six of the twelve jurors in the box, and others were selected to take their places, and the district attorney then declared himself content with the jury. The counsel for the defense thereupon, before the defendant had exercised the right of peremptory challenge at all, claimed and insisted that the prosecution were bound, if it desired to challenge peremptorily any of the jurors then in the box, to exercise the right at that time and before the defendant exercised his right. The court refused at that time to rule upon the point, and the defendant excepted. The defendant then challenged peremptorily some of the jurors in the box, and their places were filled as before.

Opinion of the Court, per ANDREWS, J.

Subsequently the prosecution, against the objection and exception of the defendant, was permitted to challenge peremptorily jurors who were in the box when the district attorney first declared himself content, and who were not among the six excluded upon his peremptory challenge in the first instance. Afterwards the district attorney was permitted, in repeated instances, against the remonstrance and exception of the defendant, to resume the right of peremptory challenge after peremptory challenges had been interposed by the defendant, and to challenge peremptorily jurors who were in the box when the defendant commenced to challenge, not excluded on his challenge, and as to whom the district attorney had before declared himself content. The court several times overruled the point raised by the defendant that the People were bound to exercise the right of peremptory challenge first. The court, on one occasion, said: "I have already passed upon that subject. I did hold, probably not in this case nor on this trial, but I did on a former trial, that either side had a right to interpose a peremptory challenge up to the very moment the jury were sworn. I shall adhere to that ruling and give you the benefit of an exception." The ruling was plainly erroneous. The subject is regulated by statute. Section 385 of the Code of Criminal Procedure, as amended in 1882, declares that challenges to an individual juror must be taken first by the People and then by the defendant." The next section prescribes the order in which challenges shall be taken, first challenges for cause, and next peremptory challenges. The language of section 385 precludes argument. The learned judge in overruling the defendant's contention acted doubtless under a misapprehension of the statutory rule. The only answer to the exception of the defendant on this point, if there is any, is to be found in section 542, before quoted. If the error did not affect a substantial right of the defendant, it must be disregarded. We are of opinion, however, that the order in which peremptory challenges are to be taken is matter of substance, and that section 385, so far at least as it requires the People to first exercise the right of peremptory challenge, is imperative and

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Opinion of the Court, per ANDREWS, J.

not directory. The right of peremptory challenge given to an accused person is a substantial right. BLACKSTONE says: "It is full of tenderness and humanity to prisoners, for which the English laws are justly famous." (2 Bl. Com. 352.) By the ancient common law it seems that the crown had the right of peremptory challenge, but this was changed by statute 33, Edward 1, statute 4, which took away the right and required the king to assign cause of challenge in all cases. This statute was evaded, to some extent, by the construction of the courts, which permitted the prosecution to set aside a juror for the time being without assigning cause until after the whole panel was gone through with, and it appeared that a full jury could not be obtained without the juror challenged. (2 Haw. Ch. 43, § 3; Bish. Crim. Pro. § 937 et seq.) In this state a limited right of peremptory challenge was given to the People on trials of indictments for murder and other felonies by chapter 332 of the Laws of 1858, five on trials of indictments for murder and felonies punishable with imprisonment for more than ten years, and in other cases three. But the defendant was allowed twenty peremptory challenges in case of an indictment for murder or felony, punishable with ten years or more imprisonment. (2 R. S. 734, § 97.) By chapter 427 of the Laws of 1873, it was provided that on the trial of all felonies or misdemeanors the prosecution should be entitled to the same number of peremptory challenges as are given to the defendant. It will be observed that from the earliest times the right of peremptory challenge was the privilege of the accused. The statute of Edward I was enacted, as Lord COKE says (Coke Lyt. 1566), to put an end to the practice of permitting the king to challenge peremptorily, because it was found to be mischievous to the subject, tending to infinite delays and dangers. When first permitted in this state the right was greatly restricted, and until the act of 1873, a much larger number of peremptory challenges was given to an accused person than to the prosecution. The act of 1873, did not prescribe in what order the right of peremptory challenge should be exercised. This was first prescribed by section 385

Opinion of the Court, per ANDREWS, J.

of the Code of Criminal Procedure, and the requirement of that section, that the People shall challenge first, is the only substantial advantage remaining to a defendant. The requirement of section 542 of the Code of Criminal Procedure is to be reasonably and fairly applied. The court is no longer required, to reverse a conviction because a mere technical error is disclosed by the record. If error is found it may be disregarded if it appears that no substantial right of the defendant was prejudiced. But it is plain that every statutory provision intended for the benefit of the accused confers a substantial right which cannot be disregarded without his consent. In civil cases where property is sought to be taken, or title divested under statutory proceedings, it is the familiar and settled doctrine that the statute must be strictly followed, and every provision having the least semblance of benefit to the owner must be complied with or else the proceeding is void. The same principle applies with even greater force where the proceeding may affect life or liberty. It is plain, we think, that the statute prescribing the order of peremptory challenges in criminal cases was intended for the benefit of the defendant. The prosecution being first required to exhaust its peremptory challenges relieves the defendant from using his challenges in cases where the juror challenged by the prosecution was also unacceptable to the defendant, and thereby preserves his challenges to be used in other cases. There is a choice, moreover, as between qualified jurors. Both the prosecution and the accused may reject, on peremptory challenge, a qualified juror without assigning cause. The right of peremptory challenge was originally given to the accused that he might exclude from the jury a juror against whom he entertained a prejudice, although not founded upon any reason which would disqualify him. So, also, where he has a preference in favor of a juror legally selected and qualified to sit, who is not peremptorily challenged by the prosecution in the first instance, the observance of the statute secures to the accused his presence on the jury. On the other hand, if the prosecutor is permitted to reserve its peremptory challenge after the right has been exercised by

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