79 N.Y. 424, Pierson v. People

Citation:79 N.Y. 424
Party Name:WILLIAM PIERSON, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
Case Date:January 13, 1880
Court:New York Court of Appeals

Page 424

79 N.Y. 424

WILLIAM PIERSON, Plaintiff in Error,

v.

THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

New York Court of Appeal

January 13, 1880

Argued Dec. 10, 1879.

Page 425

COUNSEL

James Wood, for plaintiff in error. The prisoner could not lawfully withdraw his challenge to the array after it had been sustained by the court. (Lord Dacres Case, Kelyng's R., 59; 1 Woodeson, 346; 3 Inst., 30; People v. Cancemi, 7 Abb., 271; 18 N.Y. 128; Rex v. Williams, Russ. & Ryan's C. C. R., 224; Pfeiffer v. Comm., 3 Harris [Penn.], 468; Rex v. Wolf, 1 Chit., 401; 18 Eng. C. L., 115; Comm. v. Canfield, Thatcher's Cr. Cas., 510; Stevens v. People, 10 N.Y. 549; McCloskey v. People, 5 Park. Cr. R., 308; 1 Sellon's Pr., 477; People v. McKay, 18 J. R., 212; State v. Williams, 1 Rich., 188; People v. Monaghan, 1 Park. Cr. R., 570.) The court erred in overruling the objection to the facts testified to by the physician Coe as privileged communications. (2 R. S., 406, m. p. § § 72, 73; Code of Civil Procedure, § § 833, 834, 835, 836; People v. Stout, 3 Park. Cr. R., 670; Wilson v. Rastall, 4 T. R., 753; Rex v. Withers, 2 Camp., 578; Bank of Utica v. Messereau, 3 Barb. Ch., 592; Parker v. Carter, 4 Mumf. R., 273; Greenl. Ev., 278; 1 Edw. Ch., 439; 4 Paige, 460; 14 Wend., 637, 641; Eddington v. Mut. L. Ins. Co. of N.Y. 5 Hun, 1; 67 N.Y. 185; Dilleber v. Home L. Ins. Co., 69 Id., 256; Jackson v. Lewis, 17 J. R., 475; McClusky v. Cromwell, 11 N.Y. 601; Newell v. People, 7 Id., 97.) It was error to overrule the objection to the question to the clergyman from Michigan as it tended to prove another crime than the one charged in the indictment. (Colman v. People, 55 N.Y. 81; People v. Hopson, 1 Den., 574; Rosenweig v. People, 63 Barb., 635.)

D. W. Noyes, for defendant in error. The prisoner by withdrawing his challenge to the array of the jury and consenting to go to trial with the jury summoned waived any

Page 426

supposed irregularity in the drawing of additional jurors, and cannot now be heard to question it. (People v. Ramson, 7 Wend., 417; People v. Rathburn, 21 Id., 509, 541, 542; Gardiner v. People, 6 Park. Cr. R., 155; Cancemi v. People, 18 N.Y. 137; People v. Cummings, 3 Park. Cr. R., 343-346, 355, 356; People v. Mather, 4 Wend., 229, 245, 246; R. S., pt. 4, chap. 2, tit. 4, art. 2, § 52; Baker v. Braman, 6 Hill, 47; Joy on Confessions and Challenges, 229; Sedgwick on Statutes and Const. Law, 111; Brunkell v. Giles, 2 Moore & Scott, 41; 9 Bing., 13; People v. Murray, 5 Hill, 468-472; Germand v. People, 1 Id., 343-345; Embury v. Conner, 3 N.Y. , 511-519; Lee v. Tilotson, 24 Wend., 337; Van Hook v. Whitlock, 26 Id., 43; N. S. v. Rathborn, 2 Pain. C. C., 578; People v. McKay, 18 J. R., 212-218; Freeman v. People, 4 Dew., 9, 31; Rex v. Wolf, 1 Chit., 401; Rex v. Perkin, Holt's Rep., 403, in 1698.) The testimony of the physician Coe was properly received. (Code, § 834; § 73, art. 8, tit. 3, chap. 7, pt. 38, R. S.; Wilson v. Rastall, 4 Durnf. & East., 759, 760; Dutchess of Kingston's Case, 11 Har., 242; People v. Stout, 3 Park. Cr. R., 670; 1 Greenl. Ev., § 248; Edingston v. Mut. L. Ins. Co., 67 N.Y. 185-194; Johnson v. Johnson, 14 Wend., 637-641; 1 Phil. Ev., chap. 6, § 1, p. 163 [3d ed.]; Merle v. Moore, R. & M., 390; Allen v. Public Administrator, 1 Brad., 221; Thayer v. Allen, Selden note, 93; Hewitt v. Prime, 21 Wend., 79; Wharton Am. Crim. Law, § § 591-774; 1 Vernon, 385; Webb v. R. W. and O. R. R. Co., 49 N.Y. 420-426; Costigan v. M. and H. R. R. Co., 2 Den., 609, 610; Ryan v. N.Y. C. R. R., 35 N.Y. 216; Stephens v. People, 4 Park., 396, 454, 455; People v. Thurston, 2 Id., 49; People v. Lake, 1 Id., 495; 1 Phil. Ev. [3d Am. ed.], 192; Aveson v. Lord Kinnaird, 6 East., 188.) The testimony of the witness Butterfield was properly admitted. If for no other purpose it was clearly competent and material on the question of motive. (People v. Stout, 4 Park. Cr. R., 71, 72; People v. Hopson, 1 Den., 574-577; Cary v. Hotaling, 1 Hill, 311; Roscoe's Crim. Ev., 81; 1 Greenl. Ev., § 63;

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People v. Conkey, 5 Park., 32; People v. Wood, 3 Park. Cr. R., 681; Rex v. Clewes, 4 Car. & P., 221; Rex v. Clews, 19 Eng. Com. L. R., 354; Woods Case, 3 Park. Cr. R., 681; Stork v. State, 4 Humph., 27, 525-529; Johnson v. State, 17 Ala., 618-625; Walker v. State, 1 Leigh. [ Va.], 514.)

EARL, J.

William Pierson, the prisoner, was indicted in Livingston county for murder, in causing the death by poison of Leaman B. Withey, in February, 1877.He was tried at the Oyer and Terminer of that county in February, 1878, and was convicted and sentenced to be hung. His conviction was affirmed at the General Term of the Supreme Court. He has now brought his case into this court by writ of error, and seeks to have his conviction reversed for several errors which have been ably presented for our consideration by his counsel.

The first ground of error alleged has reference to the selection of the jury. At the time of the trial of this case the Code required the county clerk to keep three jury boxes: (Code, § § 1038, 1050, 1052.) One was to contain, upon ballots deposited therein, the names of all the jurors returned from the various towns in the county by the town officers; another was to contain the names of all jurors who had attended a term of court and served; and a third box was to contain the names of all the jurors, upon duplicate ballots returned by the town officers of the town in which the courts were appointed to be held.

The law provides that if additional jurors are needed at any term of court beyond the number regularly summoned to attend such term, the court may make an order requiring the clerk of the county to draw and the sheriff to notify any number of trial jurors specified in the order, which the court deems necessary, to attend that term; and that the clerk must thereupon forthwith bring into court all the boxes wherein ballots containing the names of trial jurors are deposited; and must, in the presence of the court, publicly

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draw from such box or boxes as the court directs the number of trial jurors specified in the order: (Code, § § 1058, 1059.) To comply literally with the law, the court must first make the order, the clerk must then bring into court the three boxes, and the court must then direct from which box or boxes the jurors must be drawn.

After the commencement of the term, the court made an order directing the clerk to draw from the county box and the sheriff to summon thirty-six additional jurors; and later in the term, another order was made that the clerk draw from the county box and the sheriff summon fourteen additional jurors. In pursuance of these orders, the clerk brought into court the county box containing the names of the jurors returned from the various towns in the county by the proper town officers; and publicly drew therefrom the number of jurors directed, and they were subsequently summoned by the sheriff to attend. It may be inferred, although not expressly so stated in the record, that the names of the jurors thus drawn and summoned were placed in the box with the regular panel for that term. At the time the jurors were thus drawn, the third box above specified, the town box, was also in court, but the second box, containing the names of jurors who had attended and served, was not in court, and such a box was not in fact kept by the clerk, and it did not appear what disposition was made of the jury ballots which should have been deposited in such box.

When the case was moved for trial, the prisoner challenged the array of jurors, and alleged, as a ground of challenge, that the second box was not kept by the clerk and brought into court at the time of drawing the jurors. The district-attorney took issue upon the challenge, and upon the trial of such issue the facts appeared as above stated, and the court sustained the challenge. The prisoner thereupon withdrew his challenge, and a jury was then empaneled and the trial proceeded. It is now claimed by the learned counsel for the prisoner that the challenge was properly sustained; and that after it was sustained, the prisoner could not lawfully

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withdraw it and go to trial before a jury thus irregularly drawn.

It is not important for us to determine whether the challenge was properly sustained, because, whether it was or not, we are of opinion that the prisoner could withdraw his challenge and waive any irregularity which existed in this case. The maxim quilibet potest renunciare juri pro se introducto is of quite general application. One may waive constitutional provisions intended for his benefit: (Lee v. Tillotson, 24 Wend., 337; Van Hook v. Whitlock, 26 Id., 43; The People v. Murray, 5 Hill, 468; Baker v. Braman, 6 Id., 47; Embury v. Conner, 3 N.Y. , 511.) A prisoner may waive a trial by jury and plead guilty; he may waive a plea of autrefois acquit by not interposing it or withdrawing it; he may waive or withdraw a challenge to a juror; he could waive his right to have a challenge of a juror for...

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