People v. Connor

• Citation: 36 N.E. 807,142 N.Y. 130
• Parties: PEOPLE v. CONNOR.
• Decision Date: 10 April 1894
• Court: New York Court of Appeals

142 N.Y. 130

36 N.E. 807

PEOPLE

v.CONNOR.

Court of Appeals of New York.

April 10, 1894.

Appeal from supreme court, general term, fourth department.

Prosecution against John Connor, charged with the crime of grand larceny. From a judgment of conviction, defendant appeals. Affirmed.

Abram C. Crosby, for appellant.

Wm. F. White, Dist. Atty., for the People.

O'BRIEN, J.

The defendant was convicted in the court of sessions of the crime of grand larceny in the second degree. On the trial, which resulted in the judgment now under review, the defendant interposed the general plea of not guilty, and also a special plea of a former trial and conviction, to the indictment. These pleas were tried separately before the same jury, and the questions involved in this appeal arise upon exceptions taken upon or growing out of the trial of the issue made by the special plea. It appeared that the former trial was had before a court composed of the county judge and two justices of the peace, temporarily designated by order to serve as members of the court, by reason of the death of one of the justices of sessions, and the absence of the other. One of the justices of the peace so designated was related to the defendant within the sixth degree, and so incapable of acting as a member of the court during the trial, by section 46 of the Code of Civil Procedure. The trial proceeded apparently without any knowledge of the fact, and certainly without any reference to it, and the jury found a verdict of guilty. After the verdict the fact that one of the members of the court was so related to the defendant was presented to the court by affidavits in support of a motion in arrest of judgment. The court, though holding that the motion was not based upon any defects in the indictment, nor founded upon any facts appearing on the face of the record, within section 331 of the Code of Criminal Procedure, set aside the verdict; and, the court having been reconstituted in a manner to obviate the objection, the indictment was continued to the next term, when the trial under review was had. A jury having been drawn and impaneled, the court directed that the issue upon the special plea be tried before that arising upon the general issue. The trial proceeded, and proof of the relationship of the justice on the former trial to the defendant was made, the defendant's identity established, and all the proceedings on the first trial shown. The court instructed the jury that the plea of former conviction was not sustained unless there was in fact a lawful trial and conviction; that if the former trial was before a court, one of the members of which was related to the defendant within the prohibited degree, then the court was improperly constituted, and without jurisdiction in the case; that then the result would be a mistrial, and no bar to another trial. The defendant's counsel excepted to these instructions, and the jury determined the issue upon the special plea in favor of the people. The court then directed that the trial proceed upon the issue raised by...