People v. McQuade

• Decision Date: 02 October 1888
• Citation: 18 N.E. 156,110 N.Y. 284
• Parties: PEOPLE v. McQUADE.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 284

18 N.E. 156

PEOPLE

v.McQUADE.¹

Court of Appeals of New York.

October 2, 1888.

Appeal from supreme court, general term, First department.

The defendant, Arthur J. McQuade, was indicted for bribery alleged to have been committed by him while a member of the board of aidermen of the city and county of New York. From a judgment of conviction, which was affirmed by the general term, (1 N. Y. Supp. 155,) defendant appeals.

GRAY, J., dissenting.

Benj. F. Tracy, for appellant.

McKenzie Semple, Ass't. Dist. Atty., for the People.

ANDREWS, J.

This is one of the series of cases arising on indictments for bribery in connection with the grant of the Broadway Surface Railroad franchise by the common council of the city of New York, in 1884. The defendant was a member of the board of aldermen, and voted for the granting of the franchise. He has been twice tried on the indictment. On the first trial the jury disagreed, and on the second trial, in November, 1886, he was convicted. The conviction was affirmed on appeal to the general term of the supreme court, and this appeal is from the judgment of affirmance. Exceptions were taken by the defendant on the trial to certain rulings in the proceedings in impaneling the jury, to the admission and rejection of evidence, and to the charge to the jury, and to refusals to charge.

The assignments of error are to be considered and decided in view of section 542 of the Code of Criminal Procedure, which requires the appellate court, on an appeal in a criminal case, to ‘give judgment without regard to technical errors or defects which do not affect the substantial rights of the parties.’ The questions in respect to the impaneling of the jury will first be considered. Each juror drawn, as he was called, was examined first by the prosecution, and then by the defense, as to his qualifications as a juror, no formal challenge being interposed by either party; and, unless set aside by the court for bias or other cause, took his seat in the box, but without being then sworn as a juror in the case. Neither party exercised the right of peremptory challenge until after the box was full. The people then challenged peremptorily six of the twelve jurors in the box, and others were selected to take their places, and the district attorney then declared himself content with the jury. The counsel for the defense thereupon, before the defendant had exercised the right of peremptory challenge at all, claimed and insisted that the prosecution were bound, if it desired to challenge peremptorily any of the jurors then in the box, to exercise the right at that time, and before the defendant exercised his right. The court refused at that time to rule upon the point, and the defendant excepted. The defendant then challenged peremptorily some of the jurors in the box, and their places were filled as before. Subsequently the prosecution, against the objection and exception of the defendant was permitted to challenge peremptorily jurors who were in the box when the district attorney first declared himself content; and among the jurors so peremptorily challenged by the prosecution were jurors who were in the box when the district attorney first exercised the right of peremptory challenge, and who were not among the six excluded upon his peremptory challenge in the first instance. Afterwards the district attorney was permitted, in repeated instances, against the remonstrance and exception of the defendant, to resume the right of peremptory challenge after peremptory challenges had been interposed by the defendant, and to challenge peremptorily jurors who were in the box when the defendant commenced to challenge, not excluded on his challenge, and as to whom the district attorney had before declared himself content. The court several times overruled the point raised by the defendant, that the people were bound to exercise the right of peremptory challenge first. The court, on one occasion, said: ‘I have already passed upon that subject. I did hold, probably not in this case, nor in this trial, but I did on a former trial, that either side had a right to interpose a peremptory challenge up to the very moment the jury were sworn. I shall adhere to that ruling, and give you the benefit of an exception.’ The ruling was plainly erroneous. The subject is regulated by statute. Section 385 of the Code of Criminal Procedure, as amended in 1882, declares that ‘challenges to an individual juror must be taken first by the people, and then by the defendant.’ The next section prescribes the order in which challenges shall be taken,-first, challenges for cause; and next, peremptory challenges. The language of section 385 precludes argument. The learned judge, in overruling the defendant's contention, acted, doubtless, under a misapprehension of the statutory rule. The only answer to the exception of the defendant on this point, if there is any, is to be found in section 542, before quoted. If the error did not affect a substantial right of the defendant, it must be disregarded. We are of opinion, however, that the order in which peremptory challenges are to be taken is matter of substance; and that section 385, so far at least as it requires the people to first exercise the right of peremptory challenge, is imperative, and not directory. The right of peremptory challenge given to an accused person is a substantial right. Blackstone says: ‘It is full of tenderness and humanity to prisoners, for which the English laws are justly famous.’ 2 Bl. Comm. 352.

By the ancient common law it seems that the crown had the right of peremptory challenge, but this was changed by statute 33 Ed. I. St. 4, which took away the right, and required the king to assign cause of challenge in all cases. This statute was evaded to some extent by the construction of the courts, which permitted the prosecution to set aside a juror for the time being without assigning cause until after the whole panel was gone through with, and it appeared that a full jury could not be obtained without the juror challenged. 2 Hawk. P. C. c. 43, § 3; 1 Bish. Crim. Proc. § 937 et seq. In this state a limited right of peremptory challenge was given to the people, on trials of indictments for murder and other felonies, by chapter 332 of the Laws of 1858,-five on trials of indictments for murder and felonies punishable with imprisonment for more than ten years, and in other cases three. But the defendant was allowed 20 peremptory challenges in case of an indictment for murder or felony punishable with 10 years' or more imprisonment. 2 Rev. St. p. 734, § 9. By chapter 427 of the Laws of 1873 it was provided that, on the trial of all felonies or misdemeanors, the prosecution should be entitled to the same number of peremptory challenges as are given to the defendant. It will be observed that from the earliest times the right of peremptory challenge was the especial privilege of the accused. The statute of Edward I. was enacted, as Lord Coke says, (Co. Litt. 156 a,) to put an end to the practice of permitting the king to challenge peremptorily, because it was found to be mischievous to the subject, tending to infinite delays and dangers. When first permitted in this state, the right was greatly restricted; and, until the act of 1873, a much larger number of peremptory challenges was given to an accused person than to the prosecution. The act of 1873 did not prescribe in what order the right of peremptory challenge should be exercised. This was first prescribed by section 385 of the Code of Criminal Procedure, and the requirement of that section that the people shall challenge first is the only substantial advantage remaining to a defendant. The requirement of section 542 of the Code of Criminal Procedure is to be reasonably and fairly applied. The court is no longer required to reverse a conviction because a mere technical error is disclosed by the record. If error is found, it may be disregarded, if it appears that no substantial right of the defendant was prejudiced. But it is plain that every statutory provision intended for the benefit of the accused confers a substantial right which cannot be disregarded without his consent. In civil cases, where property is sought to be taken or title divested under statutory proceedings, it is the familiar and settled doctrine that the statute must be strictly followed, and every provision having the least semblance of benefit to the owner must be complied with, or else the proceeding is void. The same principle applies with even greater force where the proceeding may affect life or liberty. It is plain, we think, that the statute prescribing the order of peremptory challenges in criminal cases, that the right should be first exercised by the people, was intended for the benefit of the defendant. The prosecution being first required to exhaust its peremptory challenges, relieves the defendant from using his challenges in cases where the juror challenged by the prosecution was also unacceptable to the defendant, and thereby preserves his challenges to be used in other cases. There is a choice, moreover, as between qualified jurors. Both the prosecution and the accused may reject a qualified juror without assigning cause. The right of peremptory challenge was originally given to the accused, that he might exclude from the jury a juror against whom he entertained a prejudice, although not founded upon any reason which would disqualify him. So, also, where he has a preference in favor of a juror legally selected and qualified to sit, who is not peremptorily challenged by the prosecution in the first instance, the observance of the statute secures to the accused his presence on the jury. On the other hand, if the prosecutor is permitted to reserve its peremptory challenge after the right has been exercised by the defendant, he is enabled to acquire information as to what jurors are satisfactory to the defendant, and...