People v. Decker

• Decision Date: 22 November 1898
• Citation: 51 N.E. 1018,157 N.Y. 186
• Parties: PEOPLE v. DECKER.
• Court: New York Court of Appeals Court of Appeals

157 N.Y. 186

51 N.E. 1018

PEOPLE

v.DECKER.

Court of Appeals of New York.

Nov. 22, 1898.

Appeal from supreme court, trial term.

Bailer Decker was convicted of murder in the first degree, and he appeals. Affirmed.

The defendant was a colored man, and the decedent was a white woman. They were husband and wife, and lived together as such in the upper story of a house on Beach street, in Tottenville, in the county of Richmond, N. Y. The lower part of the house was occupied by two colored families, living on different sides of the hallway. In the evening of May 24, 1898, which was the day preceding the tragedy, the defendant had been in a saloon from about 9 o'clock until half past 11, and remained near there for an hour longer in conversation with a man by the name of La Forge. He then started for home, about a mile distant, and reached there at 1 o'clock. His wife left the house where they resided at about midnight, and returned at about 3 o'clock in the morning of May 25th. She was admitted by a sister of the defendant, who occupied one of the apartments on the first floor. The defendant then came to the door of the stairway, opened it for her, and both went upstairs. Shortly after, quarreling and loud talking were heard in their rooms, and the decedent ran downstairs. The defendant called to her to return and get her clothes. She went back, obtained a part of them, started down the stairs again, was then requested by the defendant to get all of her clothes, to which she replied that she had all she wanted, and left the house. Shortly after, the defendant came downstairs, and soon three shots were heard in the direction of the house of a Mrs. Parnell. The defendant then returned, went upstairs, remained a few moments, and then left a second time. As he was passing out of the house, he called to his sister-in-law, who occupied another of the apartments on the first floor, and said: ‘Good bye. She is dead down the road.’ A single shot was then heard, and the defendant was found across the road from the house, wounded, with a revolver lying near. On the roadside in front of Mrs. Parnell's house, which was 400 feet from where the defendant was lying, his wife was found, with a bullet wound on the right side of her back. The autopsy disclosed that the cause of her death was hemorrhage of the lungs, occasioned by such wound. The defendant had previously threatened to use the revolver with which the decedent was finally killed, unless she did as he said. He frequently called her vile and abusive names, and he and his wife led an unhappy and quarrelsome life. The defendant admitted that he fired three shots at the decedent, and that when the third was fired she fell. Two bullets, one taken from the body of the decedent and the other from the body of the defendant were identified, and shown to be of the same caliber as the revolver which was proved to have been in the possession of the defendant.

On the morning of the homicide, and after it occurred, articles of clothing belonging to and worn by the decedent were found between the house and the place where her body lay. When found, there was upon the body of the decedent only a night gown, and one of her shoes or slippers was near. The distance from the house to the place where a portion of her clothing was found was 300 feet. From that point to the place where other of her clothing lay was 72 feet, and the distance from the latter point to the place where her body was discovered was 118 feet. Thus the total distance from the house to the point where her body was found was 490 feet.

William J. Powers, for appellant.

George M. Pinney, Jr., for the People.

MARTIN, J. (after stating the facts).

The defendant, in his brief, presents for determination upon this appeal questions as to the validity of several exceptions taken upon the trial, and asks for a new trial upon the further ground that manifest injustice has been done. Two of these questions relate to the impaneling of the jury. The defendant's claim is that two jurors were improperly excused by the court. John W. Bhair was summoned as a talesman, and upon examination as to his competency to serve he testified that the fact that the decedent was a white woman would have a decided influence upon him in arriving at a verdict, and that he could not decide the case according to the law and evidence where a white woman had married a colored man, and they had trouble. After giving this testimony, the court excused him. We think this evidence showed clearly that he would not have been a fair and impartial juror in the case, and that sufficient reason existed to justify the court in excusing him. But it is claimed that, as no challenge was interposed, it was error not to permit him to sit upon the trial. Section 358 of the Code of Criminal Procedure declares that the jury in a criminal case is to be formed as prescribed in the Code of Civil Procedure. When we turn to section 1166 of the latter Code, we find it provides that the first 12 persons who appear as their names are drawn and called, and are approved as indifferent between the parties, and not discharged or excused, must be sworn, and constitute the jury to try the issue. Thus, a juror who is not indifferent between the parties, and approved by the court as being indifferent, cannot act as one of the jury. The approval or determination as to his indifference and competency, when the question arises, is to be passed upon by the court. While it is doubtless true that a court cannot capriciously set aside as incompetent jurors who are clearly competent, and thus limit the selection of the jury to the jurors who may be left (Hildreth v. City of Troy, 101 N. Y. 234, 4 N. E. 559), yet, where it is obvious from the proof given upon the question that the juror whose name is called is not competent or indifferent between the parties, we think, even in the absence of a formal challenge, the court may reject or excuse him. The juror Bhair was examined as to his qualifications to serve upon the jury in this case. His own testimony disclosed that he was not indifferent between the parties. While the record shows no formal challenge either by the prosecution or by the defense, it is manifest that both parties understood that the examination made was for the purpose of determining if he was competent and qualified to act. We think, under such circumstances, the court was justified in excusing him, although no specific challenge was interposed by either party. No objection to the ruling was taken upon the ground that no challenge had been interposed. If the objection had been made on that ground, there can be no doubt that the prosecution would have interposed a formal challenge. The juor was excused for reasons which were sufficient. To hold now that this general exception to the decision of the court entitles the defendant to a reversal of the judgment would be to give effect to a pure technicality, as it is not pretended that the rejection of this juror in any way affected the substantial rights of the defendant. The determination of the court as to his competency was, in no sense, incorrect, but a reversal is sought upon the mere technical ground that no formal challenge was interposed by the prosecution. To sustain the defendant's contention would be in direct contravention of the provisions of the Code of Criminal Procedure which declare that, after hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. Section 542. Therefore we are of the opinion that the judgment in this case should not be disturbed upon that ground.

Frederick Gluckter was also summoned, and upon an examination as to his competency as a juror he testified that, if the defendant killed his wife in a fit of jealousy, he would be lenient towards him for a lighter sentence; that, if she actually went with other men, it would induce him to accept a lighter sentence, no matter what the other proof might be; and that, under...