People v. Henries

By the Court,

T. R. Strong, J. —

By the common law of England, as modified by the statute 33 Edw. I, 4, the crown was allowed a challenge to jurors without assigning his cause of challenge until the panel was gone through; but if a full jury was not then obtained he was required to state the cause, which was to be inquired of by the court. Beyond this there was no peremptery challenge on the part of the crown. (4 Bl. Com. 353, 1 Chit. Crim. Law, 534 and cases cited.) This was the law of the colony of New York at the time of the revolution, and was adopted by this state, the people occupying the place of the crown. (Const. of 1777, § 35.) On the 19th of April, 1786, an act was passed in this state, by section twenty-two of which it was provided, “ that in all cases where the attorney general of this state, in behalf of this state, or he who shall in any case prosecute for the people of this state, shall challenge any juror as not indifferent, or for any other cause, he who shall make any such challenge, shall immediately assign and show the cause of such challenge, and the truth thereof shall be inquired of and tried, in the same manner as the challenges of other parties are or ought to be inquired of and tried.” .(1 Greenleaf’s Laws, 261.) This section must have been intended to abrogate the right of challenge without showing cause; and I think it did so. Unless such was its object, I do not perceive any reason for it, nor unless it had that effect, do I perceive that any thing was accomplished by it. It is not merely declaratory, for it changes the common law rule by requiring cause to be shown in all cases of challenge in behalf of the people, and immediately on the making thereof. The provision of this section was continued in the revisions of 1801 (1 Kent and Brad. 385, § 25) and 1813, (1 R. L. 334, § 25,) a proviso being added, that nothing in that act contained should be construed to take away the right of peremptory challenge in any cases where the same were then allowed by law. The purpose of this proviso is not apparent; it may have been to prevent an implication from the latter clause of the provision affecting the right to a peremptory challenge by a defendant; but whatever may have been its object, I do not think it restored to the people the right of challenge without' assigning a cause — or a pe-, remptory challenge — as it formerly existed. If the legislature had entertained such an intention, it would have been manifested in very different terms, and another way. The revised statutes of 1830 contain a section in relation to challenges in behalf of the people — which is the only provision therein on the subject — in these words: “ The attorne3r general, or district attorney prosecuting for the people of this state, shall be entitled to the same challenges in behalf of this state, either to the array or to individual jurors, as are allowed to parties in civil cases, and the same proceedings shall be had thereon as in civil actions.” This section is a revision of the statute of 1813 before referred to, and a substitute for it, and, in my opinion, restricts the right of challenge in behalf of the people to the limits therein specified.

In 1830, no challenge was allowable in civil cases, either at common law or by the revised statutes of that year, except for special cause shown. If the people were after that revision entitled only to the same challenges as parties in civil cases, it was necessary that, their cause of challenge should in every case be stated, and judged of by the court. In 1847, an act was passed, the first section of which is in these words: “ Upon the trials of any issue or issues of fact, joined in a civil action, each party shall be entitled peremptorily to challenge two of the persons drawn as jurors for such trials.” By the second section, the right of peremptorily challenging a limited number of jurors is given to a defendant in criminal cases where it did not before exist; and by the third section it is declared that nothing in the act contained shall be deemed to prevent any challenges theretofore allowed either to the array or to individual jurors. It is claimed on the part of the people that the first section of this act, and the section of the revised statutes allowing the people the same challenges as are allowed to parties in civil cases, are in pari materia, and must be construed as if they proved parts of the same statute, and were enacted at the same time; hence, that the people are in every criminal case entitled to two peremptory challenges. The rule is well established that statutes in pari materia must be construed with a reference to each other, but I think it is inapplicable to this case. The statutes in question are upon entirely different subjects; the first relates to challenges in criminal cases, and refers to civil cases merely for description; the other relates to civil cases only. There is nothing in the act of 1847 indicating an intention to extend the right of challenge in behalf of the people in criminal cases, nor in the revised statutes, manifesting that it was contemplated that the right of the people was to be enlarged or diminished as the right of challenge in civil cases might be varied. I am satisfied that the act of 1847 has not changed the law as it stood before, in respect to challenges by the people in criminal cases, and that no peremptory challenges by them are allowable.

The views here presented and conclusions airived at, are in conflict with those in the President, &c. of Waterford and Whitehall Turnpike v. The People, (9 Barb. 161,) in which one of the members of the court dissented, but they are supported by the decisions in The People v. Aichinson, reported in 7 How. Prac. Rep. 241. The latter case was in the Oyer and Terminer, but the opinion was delivered by the presiding justice — a member of this court — and evidently after a careful examination. In both cases the same question as in the present was involved and necessarily decided.

There is another reason in this case why a new trial should be granted. The sessions had not jurisdiction to try the indictment, as the punishment upon conviction might be imprisonment for life, (a) (Laws of 1847, 332, § 44; 2 R. S. 208, § 5, Sub. 2, 677, §§ 55, 678 and 57; The People v. Abbot, 19 Wend. 192.) The trial and conviction are utterly void.

Conviction reversed, and new trial granted.

(a) The statute authorizes a court of sessions to hear, determine and punish, according to law. all crimes and misdemeanors not punishable with death, or imprisonment in the state prison for life. Though robbery in the first degree may be punished by imprisonment for ten -years, it is also punishable by imprisonment for life. A similar construction was put upon the words liable to be punished in the People v. Van Steenburgh, supra, 36.