This is an appeal from a judgment of conviction for reckless driving in violation of section 1190 of the Vehicle and Traffic Law. The conviction was had in the town Justice Court of the Town of Cuba by a jury verdict of guilty. Four causes of error are cited by the defendant on appeal.
On the jury selection, the Assistant District Attorney moved the court to excuse a juror for cause, stating to the court after the examination:
"Mr. Embser: She would be embarrassed to bring in a verdict against this man, she is acquainted with the defendant." The defense counsel objected as follows:
"Mr. Francis: That is not one of the causes set forth in the Code of Criminal Procedure, Your Honor. I don't think he can have an excuse for cause on that ground, I think it would be a peremptory.
"The Court: I will grant a peremptory challenge."
At a later point in the examination, the court reversed its ruling, and the following discussion was entered on the minutes.
"Mr. Francis: The court has ruled twice on that same motion, Your Honor.
"The Court: That is correct. The court has ruled twice on the same motion, once for Ann McLaughlin and once for Arby Swift, both for the same reason, because they were acquainted with the parents of the defendant. Very well, I will rule on Ann McLaughlin that it is for cause rather than peremptory.
"Mr. Francis: May I have an exception, Your Honor.
"The Court: Your exception is noted.
"(Examination of the prospective jurors was completed and the trial jury was duly sworn in.)"
The court, also, on its record of challenges made the following notation: "(3) This peremptory by People challenged by Defendant as being 4th where only 3 are allowed. People argued that they originally requested "cause" and that the grounds for cause were the same as Juror #6, Evelyn Tucker, who was excused at request of defendant. Court reversed itself on Ann McLaughlin and allowed for cause. Objection by defendant overruled and exception noted."
Neither counsel nor the court has discovered any case of alleged excess challenges presented in this jurisdiction and comparable to the situation herein. The conduct of the Justice was, at least, somewhat irregular. Upon the challenge being brought to his attention, he should have tried the challenge. "The challenge must, in all cases, be tried by the court." (Code Crim. Pro. § 707; see, also, §§ 382 and 383.) No objection was taken to the failure to try the challenge, and is deemed waived. (People v. Ginsberg, 238 App. Div. 872.) Accepting, then, as a stipulated fact that the prospective juror maintained a state of mind that favored the defendant, although not a state of mind shown upon the voir dire which would necessarily preclude her from rendering a fair and impartial verdict, it would be within the discretion of the Trial Judge to have excluded her for cause in the first instance if the court was not satisfied that the impression of the juror would not influence her verdict (Code Crim. Pro., § 376; People v. Fernandez, 301 N. Y. 302). Both the People and the defendant exhausted their peremptory challenges in this case, and it is urged by the defendant that under the circumstances the Justice in changing his ruling placed the defendant in a position where his case was prejudiced in the deliberations by being forced to exercise his peremptories in a manner which was not advantageous to his case, citing People v. Mancuso (26 A.D.2d 292). The court finds that the rule is not applicable under the circumstances of this case. The court may excuse a juror at any time in its discretion, even after being sworn, if before the taking of evidence (People v. Beckwith, 103 N. Y. 360), and may reject a juror on its own motion where the court deems the juror not competent or indifferent between the parties. (People v. Decker, 157 N. Y. 186; Code Crim. Pro., § 371.) In weighing the effect of variations from the usual procedures in seating jurors, it must be borne in mind that the challenge of jurors is a matter of rejection, not of selection of jurors, a matter of making up a trial box of qualified and impartial jurors, and not of selecting particular and favorable jurors. In the absence of a showing of prejudice to a defendant, therefore, such ...