People v. Dunn

Decision Date10 January 1899
Citation52 N.E. 572,157 N.Y. 528
PartiesPEOPLE v. DUNN.
CourtNew York Court of Appeals Court of Appeals


Appeal from supreme court, appellate division, First department.

Frank Dunn was charged with murder in the first degree, and he appeals from an order (52 N. Y. Supp. 968) granting a special jury. Affirmed.

The defendant was charged with the crime of murder in the first degree, and, upon being arraigned, pleaded not guilty. Thereafter the people applied for a special jury to try the issue, under the provisions of chapter 378 of the Laws of 1896. The application was granted by the appellate division of the supreme court in the First department. Leave to appeal to this court was then granted, upon the ground that a question of law was presented which ought to be here reviewed, and the following question was certified, to wit: ‘Is the act of the legislature embodied in chapter 378 of the Laws of 1896, providing for a special jury in criminal actions in certain cases, a valid and constitutional exercise of legislative power?’ The title of the act is as follows: ‘An act providing for a special jury in criminal cases in each county of the state having a certain population and for the mode of selecting and procuring such special juries; also creating a special jury commissioner for each of such counties and regulating and prescribing his duties.’ The first six sections of the act provide, with respect to the manner of appointment of special jury commissioners, ‘for each county of the state having a population of 500,000 or more,’ their terms of office, compensation, etc., and that they shall be furnished by the commissioners of jurors of the counties with lists of persons liable to serve as trial jurors, from which to select special jurors, as the justices of the appellate division shall direct, etc. Section 7 prescribes the qualifications for each special juror, namely: He must be: (1) A male citizen of the United States of at least ten years' standing, and a resident of the county. (2) Not less than thirty nor more than seventy years of age. (3) In possession of his natural faculties, and not infirm. (4) Free from all legal exceptions; of good character; of approved integrity; intelligent; of sound judgment; able to read and write the English language understandingly; and well informed; and he shall have an adequate knowledge of the duties of a juror.’ Section 8 provides that the commissioner shall not select as a special juror any person by law disqualified or exempt from service as a trial juror; nor one who has been convicted of a criminal offense, or found guilty of fraud or other misconduct, by the judgment of any civil court; nor one whose conscientious opinions are opposed to the death penalty; nor one who doubts his ability to render an impartial verdict, uninfluenced by newspaper reading or hearsay; nor one whose opinions would prevent his finding a verdict of guilty upon circumstantial evidence; nor one whose prejudice against a law of the state would preclude his finding a defendant guilty of violating such law; nor one whose prejudice against any particular defense would prevent his giving a fair and impartial trial upon its merits; nor one who avows that he cannot in all cases give to a defendant who fails to testify as a witness in his own behalf the full benefit of the statutory provision that no presumption is thereby created against him. Section 9 empowers the commissioner with respect to inquiries and examinations into the qualifications of special jurors, etc. Sections 10, 11, and 12 provide for the keeping of a list of the jurors selected, for the preparation of suitable ballots, and for the exemption of special jurors from service as ordinary jurors, etc. Section 13 provides that either the district attorney or the defendant may apply to the appellate division for a special jury, where it is made to appear ‘that a fair and impartial trial of such issue cannot be had without a special jury, or that the importance or intricacy of the case requires such jury, or that the subject-matter of the indictment has been so widely disseminated or commented upon by the press or otherwise as to induce the belief that an ordinary jury cannot, without delay and difficulty, be obtained to try such issue, or that for any other reason the due, effecient and impartial administration of justice in the particular case requires that the trial of such issue be had by a special jury.’ The other sections of the act are unnecessary to be referred to particularly, as they relate to the machinery for the drawing of special jurors and for the formation of a special jury, except that section 19 provides that the rulings of the trial court in admitting or excluding evidence upon the trial of any challenge for actual bias shall be final.

David Mitchell, for appellant.

Asa Bird Gardiner and Charles E. Le Barbier, for the People.

GRAY, J. (after stating the facts).

I think that the question which has been certified to us should be answered in the affirmative, and, were it not for the general interest and the importance which it possesses, we might well leave the discussion with the opinion as delivered at the appellate division. It must be perfectly apparent that the act has but the one direct object, of facilitating the administration of justice in criminal cases, by providing for the impaneling of a fair, competent, and impartial jury, without the difficulty and delay with which the procedure is so frequently attended. If it can be upheld as a valid exercise of the legislative power, it will confer no inconsiderable boon upon the community,-a consideration which comes somewhat to the aid of the rule that every intendment shall be in favor of the constitutionality of legislative enactments.

The appellant objects to this act as being unconstitutional and invalid upon several grounds. He charges that it is violative of the right of trial by jury; that it creates two classes of jurors and discriminates unequally; that it delegates judicial powers to the special jury commissioner to determine the qualifications of jurors; that it takes away the right of appeal from the ruling of the court on a challenge to the special juror; and that it violated the constitutional provision against the passage of private and local bills.

Is the statute violative of the right of trial by jury, as secured by the constitution of the state? That instrument provides that ‘the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.’ Article 1, § 2. This provision, as well as that which secures a person against deprivation of life, liberty, or property without ‘due process of law’ (Id. § 6), were imposed by the people as restraints upon the power of the legislature. The guaranty of the trial by jury is substantially the same as it stood in the original constitution, and its insertion simply preserved the right as it had been exercised before the adoption of the organic law of the state. This act does not appear, upon its face, to be violative of any constitutional provision; but, upon looking back of the adoption of a constitution and into the usages of the English people under the common law, do we find anything which would lead us to the belief that the creation of a system of special juries for the trial of causes is subversive of personal and inalienable rights? I find nothing, and we are certainly able to point out that special juries were known to the common law from early times. The institution of trial by jury is entitled to all the reverence which a custom deserves that is so historically interwoven with the growth and development of the rights of the English people. But it should be no superstitious reverence, warping and prejudicing our inquiry into the true significance and extent of the custom which has become a constitutional right. The system of trial by jury had its origin, through many sources, in the early institutions of the English people, and the provision in Magna Charta that no man should be deprived of his life, liberty, or property, or be condemned, ‘but by lawful judgment of his peers,’ has been generally credited with establishing, or defining, the right of trial by jury. The correctness of this belief is somewhat open to doubt, inasmuch as the provision more probably referred to the existing custom of a trial by peers. 3 Reeve, Eng. Law, [157 N.Y. 534]247; Forsyth, Jury Tr. 108. In Reeves' work it is said that trial by jury was not then known. But, however that may be, it did guaranty a procedure in trials, from which, it is generally agreed, eventually sprang the modern jury system as practiced under the common law of England. That the jury should be composed of 12 persons was due to the fact that 12 was a favorite number in the earliest times for various kinds of legal ceremonies or functions, and, for its great antiquity, was held in reverence. 1 Reeve, Eng. Law, 84 et seq. It is not without interest to observe that in the earlier times the jurors were witnesses, who pronounced upon their knowledge of the facts, and it was not until the times of Edward VI. and Queen Mary that the old procedure was softened by the selection of jurors dispassionate and indifferent between the parties, before whom witnesses were called to inform their consciences. 1 Reeve, Eng. Law, 271. That special juries were known to the common law is shown in Forsyth's work on Trial by Jury (page 173), and an instance is cited, in 1450 (29 Hen. VI.), of ‘a petition for a special jury; that is, jurors ‘who dwell within the shire, and have lands and tenements to the yearly value of xx£,’ to try a plea which it was supposed might be pleaded in abatement on a bill of appeal of murder.' In Rex v. Edmonds, 4 Barn. & Ald. 471, which was a criminal case tried before a special jury, it was observed of special juries by Chief Justice Abbott that it had not ‘hitherto been ascertained at what time the practice of...

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  • People v. Kelly
    • United States
    • Illinois Supreme Court
    • February 3, 1932
    ...rather than the method or procedure, is guaranteed, the Constitution does not define what that trial is. In People v. Dunn, 157 N. Y. 528, 52 N. E. 572, 574,43 L. R. A. 247, the fundamental elements of a trial by a jury under the common law and preserved by their Constitution are stated in ......
  • People v. Irizarry
    • United States
    • New York Supreme Court
    • November 7, 1988 is generally agreed, eventually sprang the modern jury system as practiced under the common law of England." People v. Dunn, 157 N.Y. 528, 534, 52 N.E. 572 (1899). 4 Indeed, preceding the New York Constitution of 1777, the Charter of Liberties and Privileges of 1683, § 5, and the later C......
  • People v. Buchalter
    • United States
    • New York Court of Appeals Court of Appeals
    • November 25, 1942
    ...was incorporated in Laws of 1896, chapter 378, and in Laws of 1901, chapter 602. The statute is constitutional (People v. Dunn, 157 N.Y. 528, 52 N.E. 572,43 L.R.A. 247) and was properly applicable upon proof that the defendants had been indicated for the crime of murder in the first degree.......
  • Ormsby County v. Kearney
    • United States
    • Nevada Supreme Court
    • August 4, 1914
    ... ... * * * This ... construction is supported by two well-considered cases ... decided by the Supreme Court of California ( People v ... Provines, 34 Cal. 520; Staude v. Commissioners, ... 61 Cal. 313), where the matter will be found elaborately ... discussed. See, also, ... Downer, 19 Colo. 595, 36 P. 687; Thorp ... v. Woolman, 1 Mont. 168. Holding to the same effect upon ... analogous subjects are People v. Dunn, 157 N.Y. 528, ... 52 N.E. 572, 43 L. R. A. 247; In re Dumford, 7 Kan ... App. 89, 53 P. 92; State v. Blaisdell, 22 N.D. 86, ... 132 N.W ... ...
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