People v. McGonegal

• Decision Date: 29 November 1892
• Citation: 136 N.Y. 62,32 N.E. 616
• Parties: PEOPLE v. McGONEGAL.
• Court: New York Court of Appeals Court of Appeals

136 N.Y. 62

32 N.E. 616

PEOPLE

v.McGONEGAL.

Court of Appeals of New York.

Nov. 29, 1892.

Appeal from supreme court, general term, first department.

Henry G. McGonegal was convicted of manslaughter in the first degree by the court of general sessions of the peace. From a judgment of the general term (17 N. Y. Supp. 147) affirming the conviction, defendant appeals. Affirmed.

W. T. Birdsall, (C. W. Brooke, for counsel,) for appellant.

De Lancey Nicoll, Dist. Atty., (Henry B. B. Stapler, Asst. Dist. Atty., of counsel,) for respondent.

MAYNARD, J.

The defendant, a physician, was convicted at the New York general sessions of the crime of manslaughter in the first degree, for causing the death of a young unmarried woman by the felonious use of instruments in order to produce an abortion.

The first exceptions deserving attention relate to the disposition of the challenges of the parties to individual jurors. The prosecution was permitted to reserve its right of peremptory challenge in each case until after the challenges on both sides for actual bias had been disposed of, but was required to exercise such right, if it desired to do so, before it was nown whether the juror was satisfactory to the defendant, and before he was sworn in the cause. We think this mode of procedure was authorized by the provisions of the Criminal Code. Section 385 requires challenges to an individual juror to be taken first by the people and then by the defendant. The next section prescribes the order in which challenges by either party shall be made, and divides them into four classes,-three for cause of different kinds, and the last peremptory. The two sections are to be read together, and they have the same meaning as if the legislature had declared that challenges must first be made by the people and then by the defendant, in the order enumerated in section 386.¹ It is not a reasonable construction of these provisions to require the people to go through the entire list of individual challenges, and determine whether they will avail themselves of all of them, before the defendant can be required to make a challenge upon any ground. It is sufficient if the different classes are taken up seriatim, and in the order specified, and each party called upon to determine whether, as to that class, it is desired to interpose a challenge; the people first, and then the defendant. It satisfies the language of the statute, as well as its evident intention, and secures no unfair advantageto the prosecution. In ordinary practice the challenges for cause may be grouped, as one examination will be sufficient to determine whether any tenable grounds exist for any of them, or the statements made upon an examination to determine one ground of challenge may be considered by the court in determining a subsequent challenge upon a different ground, as was held in Greenfield v. People, 74 N. Y. 277.

Several jurors were challenged by the defendant for actual bias, and, after examination, the challenges were overruled by the court, and the jurors declared competent to try the cause. So far as practicable, the defendant secured the exclusion of these jurors by the use of his peremptory challenges; but three, who were thus challenged without avail for actual bias, participated in the trial, because the defendant could not protect himself against their presence upon the jury by the interposition of a peremptory challenge. But where the challenge for bias is improperly overruled, the exclusion of the juror upon a peremptory challenge does not affect the tenability of the exception. The defendant cannot be compelled to use his peremptory challenges for such a purpose, but should be permitted to reserve them for the rejection of unsatisfactory jurors, against whom challenges for cause could not be successfully maintained. People v. McQuade, 110 N. Y. 301, 18 N. E. Rep. 156; People v. Bodine, 1 Denio, 308;Freeman v. People, 4 Denio, 31. These jurors had read the newspaper reports of the proceedings before the coroner's jury, and had formed and expressed an opinion, based upon the information thus obtained, as to the guilt or innocence of the defendant. Two may be selected as fair types of this class,-Messrs. Sayre and Miller; the former of whom was excluded by a peremptory challenge, and the latter participated in the trial. The references here made will be to their statements upon the trial of challenges to them for actual bias. While there may be some question as to the accuracy of the reports which they had read, we think it may fairly be assumed, for the purposes of this appeal, that they had read a verbatim account of all the testimony taken at the coroner's inquest; and it was announced by the district attorney at the beginning of the trial, and before any of the jurors were called, that the testimony on the part of the prosecution would be the same as that taken before the coroner, and it is to be inferred from his statements that it was not expected that any witnesses would be called by the people who had not then been sworn and examined. It is insisted that these jurors were incompetent to serve, under the decisions of this court in Greenfield v. People, supra, and People v. McQuade, supra, but we think these cases, when properly applied, do not sustain the position of the defendant. On the contrary, it was impliedly held in both cases that, upon the facts presented by this record, no reviewable error was committed by the trial court in overruling his challenges. In the Greenfield Case, which was a trial for murder, the obnoxious jurors had read the report of a former trial of the accused, when the jury disagreed, and had formed and expressed an opinion upon the question of his guilt, which it would require evidence to remove. This court held, as a question of fact, that it wa not satisfied that this opinion did not influence their verdict. The case arose before the adoption of the Code of Criminal Procedure, but after the enactment of chapter 475 of the Laws of 1872, which changed the rule of the common law, and provided that a juror who had formed or expressed an opinion was, nevertheless, competent, if he declared on oath that he verily believed that he could render an impartial verdict according to the evidence, and that such previously formed or expressed opinion would not bias or influence his verdict, and if the court was satisfied that such person did not have such a present opinion as would influence his verdict. It was considered here when chapter 427 of the Laws of 1873 was in force, which required all challenges to be tried and determined by the court only, and provided that either party might except to the determination, and upon writ of error or certiorari it might be reviewed the same as other questions on the trial. The court very plainly intimate that, where the juror makes the declaration required by the act of 1872, the decision of the court would be final and conclusive, were it not for the later statute, which authorizes the appellate court to review upon the facts as well as the law, and say at page 287: ‘There does not appear to be any question of law involved in the present inquiry. There was no exception pressed upon us which was taken to the admission or rejection of evidence. The effect of the statute of 1872, in such a state of facts as this case shows, is that the fact of forming or expressing an opinion or impression, or of having either at the time of the challenge, is not, as matter of law, conclusive proof of bias or unindifference. So that there is here only the question of fact, whether the two persons proposed, or either of them, had such a bias against the prisoner as to stand indifferent.’ The act of 1872 has been literally incorporated into subdivision 2 of section 376² of the Criminal Code; and the act of 1873, authorizing a review of the findings of fact of the trial court upon such a challenge, was repealed when that Code took effect, and the right to review in such cases is now controlled by section 455,³ and is limited to a decision of the trial court upon a matter of law by which the substantial rights of the defendant are prejudiced, and not otherwise, as in allowing or disallowing a challenge to a juror for actual bias. It is thus apparent that, if the question reviewed and decided in the Greenfield Case had arisen after the adoption of the Criminal Code, this court would have been powerless to have oeverruled the decision of the trial judge, but would have been compelled to have accepted it as final and conclusive. In the McQuade Case the change in the practice was recognized, and it was held that the decision at the trial as to the indifferency of a juror was not reviewable here, except in the absence of sufficient evidence to support it, and cannot be reviewed, if the challenge is overruled, unless the evidence discloses a condition of mind on the part of the juror which, as matter of law, renders him incompetent, for actual bias, after applying the test allowed by subdivision 2 of section 376. It was als hedl that, where it appeared that the juror had formed or expressed an opinion from a careful perusal of the testimonygiven on a former trial, the declaration required of the juror to avoid the objection of disqualification must be certain and unequivocal; and it is not enough that there are detached statements, which, if alone considered, would seem to meet the statutory requirement, if, on construing the whole statement, it is apparent the juror is not able to express an absolute belief that his opinion will not influence his verdict, and that, as matter of law, the overruling of the challenge under such circumstances was error. The juror there stated that, if the evidence was the same as that given on the former trial, his opinion would be the same; but he thought his present opinion would not affect the weight or influence that he might give to the evidence as delivered from the...