People v. Faber

• Decision Date: 04 October 1910
• Citation: 199 N.Y. 256,92 N.E. 674
• Parties: PEOPLE v. FABER.
• Court: New York Court of Appeals Court of Appeals

199 N.Y. 256

92 N.E. 674

PEOPLE

v.FABER.

Court of Appeals of New York.

Oct. 4, 1910.

Appeal from Supreme Court, Trial Term, Warren County.

Beecher Faber was convicted of murder in the first degree, and he appeals. Reversed, and new trial granted.J. Edward Singleton, for appellant.

John H. Cunningham, Dist. Atty., for the People.

CHASE, J.

The defendant has been convicted of the crime of murder in the first degree. It is not denied that he shot and killed Maud Bumps, otherwise known as Maud Ryan. It is contended on behalf of the defendant that the evidence of premeditation and deliberation is not sufficient to sustain the judgment rendered, and it is also contended in his behalf that the defendant at the time of the commission of the act was laboring under such a defect of reason as not to know the nature and quality of the act he was doing, or that the act was wrong.

We have fully examined the record and are of the opinion that the judgment should not be reversed as a matter of fact, but that the trial judge erred in his charge in relation to the duties of jurors. At the close of the main charge the defendant's counsel made a request to the court to charge, and the record of the request, the rulings of the court, and the exceptions to the rulings are as follows: ‘Defendant's Counsel: I ask your honor to charge the jury that while it is the duty of each juror to discuss and consider the opinion of others he must decide the case upon his own opinion of the evidence and upon his own judgment. The Court: I shall not tell them that. I shall tell the juror that he should join with his co-jurors, and should make in some respects their opinion his own. Defendant's Counsel: I except. The court: If, after discussing with his fellow jurors, he changes his mind, it is just what he ought to do, if he can. I shall not advise a juryman to make himself a standard for everybody else. You never could accomplish anything that way. Defendant's Counsel: I except to the refusal of the court to charge as requested and to the charge as made.’

The request of the defendant's counsel was a correct statement of the duty of jurors, and it should have been charged. The defendant had been tried before a previous jury, and they had failed to agree. The trial judge, in his apparent desire to have the jury agree, inadvertently overlooked the independent, individual, and personal character of jurors composing the body who sit to determine controversies. An approval of the charge would make it a precedent. We cannot disapprove the charge and at the same time affirm the judgment, because if a juror, in compliance with the direction of the court, made the opinion of the other jurors in some respects his opinion, it may have resulted in an agreement by the jury where an agreement would not have been obtained if each juryman in obedience to his right and duty had decided the case upon his own opinion of the evidence and upon his own judgment.

The verdict of a juror should be free and untrammeled. In arriving at a verdict the judge presiding at the court must not attempt to coerce or compel the jury to agree upon a particular verdict, or any verdict. It was held in substance in People v. Sheldon, 156 N. Y. 268, 50 N. E. 840, 41 L. R. A. 644, 66 Am. St. Rep. 564, that an attempt to drive the members of a jury into an agreement is beyond the power of the court, and that an obvious effort to effect such result demands a new trial, and in that case the authorities relating to the subject in this and other states were quite fully discussed. See, also, Twiss v. Lehigh Valley R. R. Co., 61 App. Div. 286,70 N. Y. Supp. 241.

Urging a jury to an agreement contrary to the individual opinion and judgment of one of the jurors may be coercion. The verdict of a jury should not be the general average of the views of its individual members, but the consensus of individual judgment. Every juror takes an oath that is individual, and that puts upon him as an individual the responsibility of correctly determining the matters submitted. He is a member of the body of 12 men, but he acts individually and is alone answerable to his conscience.

Brewer, J., in State v. Bybee, 17 Kan. 462, in giving expression to the same thought, said: ‘A verdict is an expression of the concurrence of individual judgment, rather than the product of mixed thoughts. It is not the theory of jury trials that the individual conclusions of the jurors should be added up, the sum divided by 12, and the quotient declared the verdict; but that from the testimony each individual juror should be led to the same conclusion, and this unanimous conclusion of 12 different minds is the certainty of facts sought in the law.’

In Brickwood Sackett's Instructions, which quotes from the language of judges in their charges to jurors in different cases, it is said: ‘No juror from mere pride of opinion hastily formed or expressed should refuse to agree, nor, on the other hand, should he surrender any conscientious views founded on the evidence. It is the duty of each juror to reason with his fellows concerning the facts, with an honest desire to arrive at the truth and with a view of arriving at a verdict. It should be the object of all the jury to arrive at a common conclusion, and to that end to deliberate together with calmness. It is your duty to agree upon a verdict if that be possible, without a violation of conscientious convictions.’ Myers v. State, 43 Fla. 500, 31 South. 275.

Again, quoting from Jackson v. State, 91 Wis. 253, 64 N. W. 838, it is said: ‘It is the duty of each juryman, while the jury are deliberating upon their verdict, to give careful consideration to the views his fellow jurymen may have to present upon the testimony in the case. He should not shut his ears and stubbornly stand upon the position he first takes, regardless of what may be said by the other jurymen. It should be the object of all of you to arrive at a common conclusion, and to that end you should deliberate together with calmness.’

Again, quoting from Simon v. State, 108 Ala. 27, 18 South. 731, it is said: ‘I will charge you that when you go into the jury room you may discuss the case together and compare notes and reason together, but before you make up your verdict you must make up in your mind, without reference to the other jurors, whether or not the defendant is guilty, and, if guilty, the degree in which you are to find him guilty. In short, when men are jurors they sit here as individuals, so far as their individual verdict is concerned, and the juror should be governed by his own conscience, and not by the minds and consciences of his fellow jurors.’

The importance of having a jury agree may properly be urged upon their attention. They may be requested not to take a position that is beyond further consideration, reasoning, and argument as to the jury determination of the issues between the parties. They may properly be warned against stubbornness and self-assertion. It is the duty of jurors to keep their minds open and free to every reasonable argument that may be presented by their fellow jurors that they may arrive at a verdict which justly answers the consciences of the individuals making up the jury.

A juryman should not have any pride of opinion, and should avoid hastily forming or expressing an opinion; but he should not surrender any conscientious views founded upon the evidence, unless convinced by his fellow jurors of his error. So long as a further argument and comparison of views may aid in bringing about a unanimous verdict, jurors may properly be kept together to continue such comparison of views and statement of argument. After all the views of the several jurors are expressed and presented in the different forms and individual opinions of the jurors are fully and conscientiously made up, if they do not agree it is the duty of jurors to so report to the court, and it is the duty of the court to discharge them.

It must not be overlooked that jurymen act as individuals, and they must decide a case upon their own opinion and their own judgment, and not merely acquiesce in the conclusions of others. Jurymen are not to make the opinion of their fellows their own, except when in so doing they concur and approve as well as acquiesce therein, and thereby fulfill the oath which they took upon entering the jury box.

When the defendant appeared for judgment he was not asked by the clerk whether he had any legal cause to show why judgment should not be pronounced against him. The defendant was sentenced to the punishment of death within the time and by the means provided and required by law. The failure to ask the defendant whether he had any legal cause to show why judgment should not be pronounced against him was a serious error. It was indispensably necessary at common law in capital cases that a defendant should be asked before sentence if he had anything to say why sentence of death should not be pronounced against him, and that this should appear of record. 1 Chitt. Cr. Law, 700; Barb. Cr. Law (2d Ed.) 370; Messner v. People, 45 N. Y. 1. It is now made necessary by section 480 of the Code of Criminal Procedure.

In Messner v. People, supra, the record failed to show that the prisoner was asked after the verdict was rendered and before judgment was pronounced thereon what he had to say why judgment should not be pronounced against him, and no opportunity was given him by the court at that stage of the proceeding for that purpose, and it was held that the omission was error for which there must be a new trial. Allen, J., concurred in the reversal, but voted to remit the proceedings to the Court of Oyer and Terminer to give judgment on the conviction.

In Ball v. United States, 140 U. S. 118, 129, 11 Sup. Ct. 761, 765 (35 L. Ed. 377), the court say: ‘At common law no judgment for corporal punishment could be pronounced against a man in his absence, and in...