People v. Jackson
| Decision Date | 27 November 1888 |
| Citation | 111 N.Y. 362,19 N.E. 54 |
| Parties | PEOPLE v. JACKSON. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from court of oyer and terminer, Oneida county; GEORGE N. KENNEDY, Judge.
Indictment of Virgil Jackson for the murder of Norton Metcalf. Defendant appeals from a judgment entered on a verdict of the jury finding him guilty of murder in the first degree.
A. D. Kneeland, for appellant.
Thos. S. Jones, Dist. Atty., for respondent.
The matters to be determined relate to the rulings of the court upon questions raised by defendant's counsel before the commencement of the trial and during its progress.
The first was on an application to the court, made March 19th, for a postponement of the trial to the November term. It was refused. The court had power to grant the application, but the affidavits presented, apart from the absence of a witness, showed nothing more than that the private and personal convenience of the defendant or his counsel would be promoted by the delay asked, and the judge might well conclude that a failure to proceed would be inconsistent with the due course of public justice. So far as the application depended on the absence of a witness, the case of King v. D'Eon, 1 W. Bl. 510, is in point. Upon a like application, Lord MANSFIELD said: ‘To put off a trial it must appear (1) that the witness is really material, and appears to the court to be so; (2) that the party who applies has been guilty of no neglect; (3) that the witness can be had at the time to which the trial is deferred; and I believe that nothing less than these concurring facts has at any time been held to be sufficient.’ In the case before us the prisoner met none of the conditions. His affidavit only averred ‘that there are two witnesses, ladies by the name of Harrington, who are material witnesses for deponent, without the benefit of whose testimony deponent cannot safely proceed to the trial of said indictment, as he is advised by his said counsel, after fully and fairly stating to him what he expects to prove by said witnesses, and as deponent verily believes; that neither their names nor addresses nor residences can be learned, and he cannot procure their attendance at this term of court.’ The affidavit of his attorney is ‘that depondent was informed by several persons, and, among others, witnesses who were sworn before the grand jury, that there was and is a person who was an eye-witness to the transaction, or alleged crime, with which defendant stands charged, who ran away as soon as the shooting concluded, whose name is unknown, and whose residence is unknown, and who has not divulged his secret, so that neither what he saw, his name or residence, can be learned; that such is the current rumor about the villege where the alleged murder occurred;’ adding that in his opinion the ‘evidence of such witness is very material and essential to the defendant.’ The question as presented hardly calls for the exercise of any legal discretion. It seems destitute of merit, and not the proper subject of review upon appeal, but in view of the importance of the case we have considered it. The trial judge did not err in its decision.
Second. It is claimed that ‘the trial judge erred in overruling the challenge to the array and panel of jurors.’ It was alleged that the offense charged upon the defendant was committed in the town of Augusta, Oneida county, on the 30th of January, 1888. He was at once arrested, and at the Oneida oyer and terminer, commencing March 12, 1888, indicted for murder. He was arraigned on the 15th of March. He pleaded ‘Not guilty,’ and, his motion to postpone being denied, the trial was set down for April 9th. The court ordered an adjourned term of the oyer and terminer to be held on that day, and directed 125 trial jurors to be summoned to attend at that time. These were drawn and summoned in the usual manner, and the court, because of their service, discharged from further attendance all jurors of the original panel who had attended and served during the four weeks' session of the court. The district attorney moved the trial of the defendant, and his counsel ‘objected to and challenged the array and the panel of jurors,’ upon various grounds, all of which, however, save one, were afterwards abandoned; the prisoner's counsel stating ‘that his challenge was directed to and intended to raise the question as to the legality of the discharge by the court of the jury originally summoned for the circuit and oyer and terminer,and which it was admitted in open court were, after a four weeks' session and service, discharged for the term, and this present panel summoned in its stead.’
The Code of Criminal Procedure permits a challenge to the panel, (section 361,) but provides that ‘it can be founded only on a material departure, to the prejudice of the defendant, from the forms prescribed by the Code of Civil Procedure in respect to the drawing and return of the jury, or on an intentional omission of the sheriff to summon one or more of the jurors drawn.’ The objection now relied upon indicates no error. The dismissal of the regular panel, if erroneous, is not within the section cited. That by explicit language is confined to acts of omission from a prescribed procedure. In the oyer and terminer the trial jury is formed as prescribed in the Code of Civil Procedure, (Code Crim. Proc. § 358;) and for that court, whether held by original appointment or by adjournment, any number of trial jurors may be summoned by direction of the court, and whensoever it deems necessary, (Id. § 34, 1058.) So, also, in the discretion of the court a juror may be excused; and as one may be, so may all. Section 1033. Continued service by a juror for four weeks might reasonably lead the trial court to the conclusion that public interest, as well as that of the juror, required a change or permitted his relief.
Third. The indictment charged that the crime was committed on the 30th day of January. The evidence showed that it was in fact committed on the 29th of January. The variance was unimportant, and properly disregarded. It is enough that the crime was committed at some time prior to the finding of the indictment, and that it could be so understood from its allegations. Code Crim. Proc. §§ 280, 284, subd. 5. The indictment might, indeed, have been amended, (Id. §§ 293-295,) but that was not necessary for the preservation of any right of the defendant.
Fourth. That the court erred in the admission of evidence.
(1) A photograph had been put in evidence, not only without objection from the defendant, but with his consent, to show the place where the homicide was committed. It represented a street scene, and, among other houses, the one occupied by the deceased in his life-time. Wasmuth, whose testimony is hereinafter referred to, from his own window had seen part of the affair, and the situation of the parties. He was present when the photograph was taken, and placed three persons in the highway to represent the position which, according to his recollection, they occupied at the time in question. His testimony as to that fact was objected to, and its admission is assigned as error. The arrangement was not exact, but it was matter of description, and served to indicate in a general way the impression left upon the mind of the witness. It aided his oral statement, and was an essential and proper explanation of the circumstances attending the taking of the picture and of the picture itself.
(2) The defendant visited the wife of Metcalf the night before the shooting, and remained in her bedroom for several hours. He was there, as on many former occasions he had been, for an illicit purpose; and evidence was given that the overcoat worn that night contained a stocking with a stone in it, described by the defendant as a ‘slung-shot.’ It is now made a point that the defendant was not permitted to show why he carried it. This, if well founded, might present a serious question, but we have carefully examined the record, especially at the folios referred to by the defendant, and find no evidence of such exclusion.
Fifth. That evidence was improperly excluded.
The shooting was from a revolver; and the defendant's counsel, in answering the plaintiff's case, said: -and the trial judge replied: ‘I do not think the evidence is admissible at this stage of the case, but I will allow you to proceed for the present on the line of the examination which you offer.’ The defendant's counsel thereupon gave evidence by one witness of threats made by Wing to Jackson, and offered another to testify that he had heard from Wing similar threats; but there was no suggestion that they had come to the defendant's knowledge. Without that they were unimportant, for, if not communicated to the defendant, they could have had...
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