Appeal from Court of General Sessions, New York County.
Henry Hosier was convicted of grand larceny, and he appeals. Reversed.
See, also, 115 N.Y.Supp. 1136.
[116 N.Y.S. 912] John
M. Coleman, for appellant.
E. Crosby Kindleberger, for the People.
Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.
The defendant was indicted for grand larceny in the first degree for having on the 3d of October, 1905, stolen two promissory notes-one for $750 and the other for $500.
A serious question that is raised by an exception of the defendant to a question asked one of the jurors upon a challenge as to his qualification as a juror to try this particular case is presented. The record does not disclose that a challenge was interposed as to each of these jurors, but the district attorney and counsel for the defendant examined each of the proposed jurors, and no objection was taken to the questions upon the ground that no challenge had been interposed. I think we must assume that there was such a challenge, and that the questions were asked to determine the competency of each particular juror. Under this indictment there were two questions for the jury to consider: (1) Whether the defendant was guilty of the crime charged, to wit, the larceny of certain promissory notes; and (2) whether the defendant had been formerly convicted of grand larceny in the second degree. In the examination of the proposed jurors, counsel for the defendant asked one juror whether, if the evidence would show that the defendant had been convicted before of a crime and had served a term in the penitentiary, that would influence him at all in the consideration of the evidence of this case. To that the district attorney objected, and the court sustained the objection, as the second conviction was one of the issues in the case. I think this objection was properly sustained, as in considering the second question referred to the jury would have to consider whether or not the defendant had been before convicted of a crime. Counsel for the defendant then asked a juror this question:
" I will ask the eighth juror if it develops from the evidence that this defendant was arraigned upon an indictment charging him with grand larceny, [116 N.Y.S. 913] and tried, and convicted and served a term, would that influence you in arriving at a verdict of guilt or innocence?"
This question was objected to by the district attorney. No ground of objection is stated, but the court sustained the objection, stating:
" Now, the objection has been sustained, and the record may show that you have asked the question of each juror, if you wish."
To this counsel for the defendant stated, " Yes, sir. And that the objection was made and sustained, to which we saved an exception" ; and the court replied, " Yes." The defendant could not be convicted unless the jury found that he was guilty of larceny in stealing one or both of the two notes mentioned in the indictment. His guilt or innocence, therefore, depended upon the jury finding him guilty of this larceny; and, while the grade of the offense depended upon his former conviction, his guilt or innocence of the crime charged depended upon the question whether he was guilty of the larceny of the notes set forth in the indictment. Upon the trial of that issue he was entitled to a trial by a fair and impartial jury; and, in determining a challenge of a juror, he was entitled to ascertain whether or not he would be influenced by considerations other than the evidence presented upon the trial. Upon this statement in the record defendant must be presumed to have asked each of the jurors called the question whether the former conviction would influence the juror in arriving at a verdict of guilt or innocence; and the court, in excluding that question to each juror, prevented the defendant from ascertaining whether or not a former conviction would influence him in arriving at a conclusion as to the guilt of the defendant of the offense charged.
Section 376 of the Code of Criminal Procedure provides that particular causes of challenge are of two kinds: (1) " For such a bias, as, when the existence of the facts is ascertained, does in judgment of law disqualify the juror, and which is known in this Code as implied bias" ; and (2) " for the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that such juror cannot try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this Code as actual bias." Section 383 provides:
" Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness, to prove or disprove the challenge; and is bound to answer every ...