These are appeals from orders of the Supreme Court, at an Albany County Special Term, setting aside indictments against the defendants herein which had been found by a Grand Jury empaneled at an Extraordinary Trial and Special Term.
Pursuant to a proclamation by the Governor an Extraordinary Term was convened in Albany County to inquire into alleged election frauds. Subsequently, and by a supplemental proclamation, the scope of the inquiry was enlarged to include, among other matters, any alleged crime and corruption by public officials in the county of Albany, and the investigation of. any offenses by persons and corporations who dealt in a business way with local governments, city and county, and their agencies. The local District Attorney was superseded and the Attorney-General and his assistants took over the investigation. On December 20, 1943, the empaneling of a grand jury was commenced. The examination of talesmen consumed twelve days, and eight panels, of thirty-six talesmen each, were summoned. Of the two hundred and eighty-eight persons thus' called one hundred and seventy-three failed to appear, or were excused prior to any voir dire examination for reasons which must be presumed to have been sufficient. The remaining one hundred and twenty-five talesmen were examined under oath as to their qualifications, and from these a Grand Jury of twenty-three members was finally selected.
The principal question involved on these appeals is whether the Grand Jury as thus selected and which returned the indictments herein was a legally constituted body.
It is charged by the defendants that this Grand Jury was not chosen by lot, and that numerous prospective jurors were summarily barred from service without being challenged for any of the causes set forth in section 239 of the Code of Criminal Procedure. The court at Special Term upheld these contentions.
*721The .only parts of the Code section mentioned that are pertinent are these:
“ A challenge to an individual grand juror may be interposed for one or more of the following-causes and for these only: * * *
“ 6. That a state of mind exists on his part in reference to the case or to either party, which satisfies the court, in the exercise of a sound discretion that he can not act impartially and without prejudice to the substantial rights of the party challenging ”.
Obviously, reference to the “ case ” means any matter that might become the subject of inquiry, and “ either party ” means the people or any defendant who might be the subject of investigation. Either counsel for the people or counsel for any person held to await the action of the Grand Jury may challenge for cause (Code Grim. Pro., § 237). None of the defendants involved in these appeals had been held to await the action of the Grand Jury and hence were not represented at the time of the voir dire examination. One William J. Shea had been so held and he was represented by counsel.
The “ state of mind ” referred to in the subdivision of the statute quoted,.as a ground of challenge for cause, means actual bias as contrasted to implied bias. The context of the paragraph would so indicate, but in addition, the identical language is used and defined in section 376 of the same Code. Bias must be given the meaning commonly attached to it, when used to define a mental attitude, i.e., “ a leaning of the mind; propensity or prepossession toward an object or view, not leaving the mind indifferent; * * * tendency; inclination; prejudice." (Webster’s New International Dictionary [1931 ed.] — emphasis supplied.)
Thus it was incumbent upon the Presiding Justice to determine, in the exercise of a sound discretion, and when the occasion arose, whether a prospective juror was biased as to any matters that might be the subject of inquiry, or as to any persons who might be subject to investigation. Manifestly the existence of bias, since the same is purely a mental attitude, is a difficult matter to determine. The latitude of the court’s discretion in this regard cannot be formulated within any precise boundaries, because if the- issue was raised he was confronted in each instance with a question of fact requiring him to take into consideration various factors and to apply a sound judgment to the whole. Quite obviously the latitude of the court’s discretion in this connection'must necessarily be more extensive than that *722exercised in the selection of a trial jury. In the latter instance the situation embraces and is limited to a known defendant and a precise issue defined by indictment, and moreover there is leeway for either party by way of peremptory challenge. In the selection of a grand jury there is no such clear cut limitation, and no provision for peremptory challenges. In such a case the court has the duty as well as the right to consider all of the > circumstances revealed; the scope and background of the investigation ; the relation, friendship or acquaintance of a prospective juror with any of the people who might be involved, or any connection or attitude of the juror with any of the matters subject to investigation; and not only the answers of the juror under oath, but also his appearance and demeanor on the stand. He is not bound to accept the statement of a juror that he can act impartially.
Since the atmosphere and all of the factors involved in a voir dire examination of prospective grand jurors can never be clearly reconstructed from a printed record a very considerable reliance must be placed upon the trial court’s discretionary judgment in any review by an appellate court. Certainly the fact that we may differ with the court’s rulings in several instances of exclusion would not warrant the conclusion that he had abused his discretion. Something more than merely errors in the exercise of discretionary judgment must be shown to justify a determination that the Grand Jury as finally selected was illegally constituted, and the defendants’ constitutional rights invaded. It must be shown that prospective jurors, clearly qualified to act impartially, were consistently and summarily barred from service so that the Grand Jury as finally selected was not one chosen by lot and in accordance with the statute.
It is not practicable within the fair limits of an opinion to discuss in detail the examination of every talesman who was excluded. Of the one hundred and twenty-five talesmen whose examination appears in the record in People v. Harris (268 App. Div. 731, decided herewith) thirty-two were excused by their own request or upon consent; two- on account of age; twenty-three admitted that it would or might cause them embarrassment to sit; and seven admitted actual bias. Of those who-admitted possible embarrassment many asserted that they could nevertheless act impartially. Defendants assert that their rejection was wholly improper, but in view of the wide scope of the investigation, the extent and nature of their acquaintances the trial court acted clearly within his discretionary powers in *723rejecting them. The total of talesmen thus excluded amounted to sixty-four. From the sixty-one prospective jurors left twenty-three were selected whose qualifications do not appear to be challenged. Thirty-eight were excluded. Of these I think in many instances it was a close question as to whether they should have been excluded, and in some instances if the printed record alone is considered it would appear that the exclusions were erroneous, but in reviewing these matters the nature and scope of the investigation must again be emphasized. It was quite apparent then, as well as now, that it might involve many public officials and prominent citizens in the city and county of Albany, and in view of that possibility it cannot be said as a matter of law that the trial court abused his discretion in rejecting those talesmen who had business connections with those who might be the subject of inquiry, or were their friends, and those who had relatives in public office; or those whose long acquaintanceship with persons under scrutiny would justify an inference of friendship and interest. The paramount consideration in the selection of a grand jury, or any jury for that matter, is to secure one whose members are wholly unbiased. Under the circumstances disclosed the trial court was confronted with a delicate and difficult task, and if he committed errors of judgment they were not apparently the result of any plan on his part or that of the Assistant Attorney-General to circumvent the statute and summarily bar any group of jurors who were qualified beyond question.
Complaint is made as to the form of challenge by the Assistant Attorney-General, or that no challenge at all, in the proper sense of the word, was made in some cases. The record indicates that in many cases the form of challenge was inept and inaccurate, but these are matters of form and do not relate to substance. The Code prescribes no particular form of challenge and so long as the essence of the objection is shown it is sufficient for the court to rule upon. It is also urged that error was committed in permitting the Assistant Attorney-General to submit a written list of names to each prospective juror for the purpose of having the juror indicate his acquaintanceship. This was in no way prejudicial since each juror was subsequently examined as to the people he knew and their names were revealed in the vast majority of cases in the course of his oral examination.
In conclusion it may be noted that a considerable portion of the rulings challenged on these appeals have been before this court and the Court of Appeals upon an application for an *724order of prohibition. (Matter of Shea v. Swift, 267 App. Div. 853, 854, affd. 292 N. Y. 116.) Relief by way of prohibition was denied without comment by á majority of either court as to the correctness of the rulings attacked.
The orders appealed from should be reversed and the indictments reinstated.