People v. Borgstrom

• Citation: 178 N.Y. 254,70 N.E. 780
• Parties: PEOPLE v. BORGSTROM.
• Decision Date: 26 April 1904
• Court: New York Court of Appeals

178 N.Y. 254

70 N.E. 780

PEOPLE

v.BORGSTROM.

Court of Appeals of New York.

April 26, 1904.

Appeal from Supreme Court, trial Term, Westchester County.

Oscar Borgstrom was convicted of murder in the first degree, and appeals. Affirmed.

David H. Hunt and David Verplanck, for appellant.

J. Addison Young, Dist. Atty., for the People.

BARTLETT, J.

The defendant took the life of his wife under circumstances of great atrocity, and his counsel seek by this appeal to reverse the judgment of conviction on questions of law only.

The record discloses that the defendant was unjustly jealous of his wife, frequently quarreled with her, and threatened on several occasions to kill her. His actions finally became so violent that the deceased swore out a warrant for his arrest, and placed it in the hands of an officer to serve. The evening of the murder, April 13th, was Monday, and the officer appeared the Saturday night previous to arrest the defendant on the warrant in his possession. When the arrest was about to be made, the deceased relented, for the reason, as stated by the officer, that ‘she said she didn't like to do it on account of its being Easter Eve, Saturday night, and tomorrow was Sunday, and she wanted to go to communion.’ No arrest was consequently made, and the following Monday evening, while his wife sat sewing at her work table, the defendant passed behind her, cutting her throat and nearly severing the head from the body.

Two legal questions are presented for consideration: (1) That the defendant was unlawfully deprived of his opportunity to challenge any one of the individual grand jurors who found the indictment against him, and that the grand jury was drawn under the special jury law for Westchester county, which is unconstitutional; and (2) that the trial jurors returned to serve at the term when the defendant was tried were not selected, drawn, and served in the manner and form prescribed by the Code by Civil Procedure, but were so selected under the special jury law for the county of Westchester, being chapter 491, p. 1016, of the Laws of 1892, as amended by chapter 269, p. 532, of the Laws of 1893.

We will first consider the claim that the defendant was deprived of his right to challenge the individual grand jurors, and that the grand jury was improperly drawn under the special jury law for Westchester county. The indictment herein was filed the 24th of June, 1903, and the defendant was duly arraigned thereon the following day. At that time the defendant submitted an affidavit that he was destitute of means wherewith to employ counsel, and asked the court to assign the counsel who appeared for him on this appeal. His request was granted. The counsel so appointed moved to dismiss the indictment on the ground, substantially, that the defendant had been confined in jail continually from his original arrest, and was under such restraint at the time of the impaneling of the grand jury, and consequently was not afforded an opportunity to challenge any individual grand juror, which right was a substantial one, conferred upon him by section 237 of the Code of Criminal Procedure. The court denied the motion, and the defendant duly excepted. The counsel for the defendant thereupon filed a challenge in writing to the panel of grand jurors, and moved to set aside or quash the indictment on the ground that the special jury law for Westchester county was unconstitutional, as contravening article 3, § 18, of the Constitution of this state. The court thereupon overruled the challenge, and the defendant duly excepted.

The defendant was brought to trial on the 30th day of October, 1903. At the opening of the trial the counsel for the defendant called the attention of the court to the fact that at the time of the arraignment the defendant had interposed an objection to the effect that on the occasion of the impanelling and swearing of the grand jury he was confined in jail, and had no opportunity to exercise his right of challenge to any individual grand juror. Nothing appears to have been said at that time as to the challenge to the panel of grand jurors drawn under the special jury law for Westchester county. The district attorney suggested that it was an objection interposed usually in capital cases, and said: ‘I do not suppose you propose to argue it.’ The court said: ‘No; I have no knowledge on the subject, and overrule the objection.’ The counsel for the defendant then filed a challenge to the panel of trial jurors, which will be presently considered.

The motion made by defendant to dismiss the indictment on the grounds already stated is sufficiently answered by the fact that there is no provision of law permitting it. An indictment may be set aside on motion when it is not found, indorsed, and presented as prescribed in the Code of Criminal Procedure; also when a person has been improperly permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration. Code Cr. Proc. § 313. The court can, undoubtedly, in addition to the grounds above stated, set aside an indictment where the constitutional rights of the defendant are invaded. People v. Glen, 173 N. Y. 395, 66 N. E. 112. No constitutional rights of the defendant are here involved, but they are clearly subject to legislative control.

Section 238 of the Code of Criminal Procedure provides as follows: ‘There is no challenge allowed to the panel or to the array of the grand jury, but the court may, in its discretion, at any time discharge the panel and order another to be summoned, for one or more of the following causes.’ The causes that follow are immaterial at this time. Section 237 of the Code of Criminal Procedure reads: ‘The district attorney in behalf of the people, and also a person held to answer a charge for crime, may challenge an individual grand juror.’ It is the obvious right of a defendant, under a criminal charge before indictment, to exercise the right here conferred upon him. The fact that he is under arrest and confined in the county jail, awaiting the action of the grand jury, is not necessarily an obstacle, as he could appear by counsel in court before the grand jury were sworn, and thus protect his rights. The fact that he was unable to employ counsel is not a legal excuse for having failed to avail himself of this statutory privilege. The court has no power to appoint counsel until arraignment, after indictment found. Code Cr. Proc. § 308. It is then its duty to ask the defendant if he desires counsel, and, if he does, the assignment must be made. We have been cited to no case where it has been held that it is the duty of the court to advise every prisoner detained in jail, awaiting trial, that an opportunity will be afforded him, before the grand jury is sworn, to exercise his right of challenge to each individual grand juror. Certainly no such duty can be assumed in the absence of positive statutory provision. People v. Jewett, 3 Wend. 314, is a conclusive authority on this point. That case presents a state of facts as strongly in favor of a defendant as could well be imagined. The defendant was indicted before he knew that a charge of crime had been made against him, and it appeared affirmatively that as to one of the grand jurors a good ground of challenge existed. Notwithstanding these very persuasive facts, the court held that the challenge to the grand juror came too late when made after he was sworn and impaneled. Chief Justice Savage, writing...