
    JOHN F. HALSTED Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.
    
      Juror, challenge to the favor. History of trial try jury.
    
    A juror who has made up his mind against a party to the action and whose opinion against that party is so strong that it would require evidence to remove it,,does not stand indifferent and is incompetent.
    Before Freedman and Truax, JJ.
    
      Decided June 27, 1890.
    Appeal from a judgment, entered on the verdict of a jury, and from an order denying a motion for a new trial.
    The action is one of the usual actions brought by an abutting property .owner against the defendant. The facts sufficiently appear in the opinion.
    
      Davies & Bapallo, attorneys and of counsel, for appellant, on the question considered in the opinion, aro-ued :
    There is no doubt that the juror brought a prejudiced mind to the trial of the issues of fact in this case. He had formed an opinion which it would require testimony to remove. Under the old common law rule this was an undoubted disqualification. People v. Vermilyea, 7 Cow. 108, 121 ; People v. Mather, 4 Wend. 229; Freedman v. The People, 4 Den. 35 ; Blake v. Millspaugh. 1 John., 316 ; Smith v. Floyd, 18 Barb. 524 ; People v. Muldon, 3 Lans. 224; Cancemi v. The People, 16 N. Y. 501; Lord v. Brown, 5 Den. 348 ; Blake v. Millspaugh, 1 John, 316. By Ch. 475, Laws of 1872 ; Code Crim. Pro. § 376, the common law rule was changed as to criminal trials and a juror who has formed an opinion or impression on the merits of the case is disqualified to set unless things concur: 1st. He must declare on oath that he believes that such opinion or impression will not influence his verdict. 2d. He must declare also on oath that he believes he could render an impartial verdict according to the evidence. 3d. And the court must be satisfied that he does not entertain such an opinion or impression as would influence his verdict. People v. Casey, 96 N. Y. 115, 119 ; Balbo v. People, 80 lb. 484 ; Cox v. People, 80 lb. 500 ; People v. Cornetti, 92 lb. 85 ; People v. McQuade, 110 lb., 298, 300. It will be observed that the juror Tailer nowhere swore that he believed such opinion or prejudice would not influence his verdict. All he could swear to, was that testimony could, if sufficiently cogent, remove the prejudice. Under the ruling in the McQuade case, 110 N. Y. 298, he would have been incompetent even in a criminal case, where the full modification of the common law rule effected by ch. 475, Laws of 1872, could be claimed. It is settled, however, that this modification is limited to criminal prosecutions. In civil cases the common law rule applies with unrestricted force. Young v. Johnson, 46 Hun, 164. In the McQuade case, 110 N. Y. 300, Andrews, J., sums up his elaborate review of this branch of law in these concise terms: “There has been no change .in the fundamental rule that an accused person is entitled to be tried by a fair and impartial jury.” He also disposes of the contention that so long as the challenging party has any peremptory challenges unexhausted he cannot press his exception to the court’s refusal to sustain his challenge for cause.
    
      Roger Foster, attorney and of counsel, for respondent, on the question considered in the opinion, argued :—
    The challenge to the juror was properly overruled. Mr. Tailor testified that he had formed an opinion “as to the effect of the elevated railroad upon property in narrow streets through which it passes,” and that he thought it damages the property in narrow streets;” that this opinion was not founded upon knowledge, but upon what he had been told by others ; that he was capable of deciding this case upon the evidence, and of giving an impartial verdict independent of what he had heard before the' trial; that he would “ observe the rule of law that the burden is on the plaintiff; ” that he had formed no opinion “as to the extent of the injury done the accused in dollars, in cents, or to an37 extent,” and then continued, “ I only know from what I have heard ; my own opinion—I don’t know—I believe —I do not know ” ; “ I believe that the defendant is a wrongdoer as respects this property. I didn’t know anything about it.” In other words he merely concurred with the Court of Appeals in its decision in Story’s case, Drucher’s case, McGeans case, &c. To hold him disqualified would be to disqualify every man of common sense and common honesty from serving as a juror in this class of cases. In Short v. The People 4 Parker’s N. Y. Criminal Reports, 71, 109, which was decided in 1858, long before the law of 1872,' which removes certain grounds of disqualifications of jtnors in criminal cases, the Monroe general term said: “It is important to understand what is meant by an opinion which operates thus conclusively to disqualify a person as a juror. We say it is an opinion which is absolute, unconditional, definite and settled ; in distinction from one which is hypothetical, conditional, indefinite and uncertain. The mind must be, for the time being, settled and at rest upon the question of the prisoner’s guilt, or upon the question to be tried. Nothing short of this will, per se, render the juror incompetent in law upon a chailenge for principle cause founded upon an allegation that he has formed an opinion. This is the good sense of the rule and according to the current authorities. Freeman v. The People, 4 Den, 1 ; The People v. Bodine, 1 lb. 281 ; The People v. Honeyman, 3 lb. 121 ; Durell v. Mosher, 8 Johns, 347." In that case the challenged juror testified on direct examination: “ I think I have an impression as to the defendant’s guilt or innocence. I rather think I have formed an opinion ; I presume I have expressed it; I think I retain it.” On cross-examination : “ I formed an opinion that these accounts were true.” On re-direct: “I - rather think I believed the accounts true ; it might or might not require evidence to remove my impression of the defendant’s guilt.” To the court: “ I did not arrive at a definite opinion." It was held that the challenge was properly overruled. This case is cited with approval by Judge Thompson in his work on Trials, where he says at § 78 : “ The opinion concerning the merits of the case on trial which disqualifies the service-men, must be a fixed, settled, absolute, positive, decided, substantial, deliberate or unconditional opinion ”; citing many authorities. McKinney v. Long Island R. R., S. C., Gen. Term, 2d Dept., July 2, 1889, 6 N. Y. Supp. 168, 169; Pratt. J: “ The challenge to the juror Dorrien was properly overruled. The juror stated that, notwithstanding his sympathies, he could render an impartial verdict upon the evidence.”
   By the Court.—Truax, J.

One of the jurors was examined touching his qualifications as a juror and testified in substance, as follows : That he knew Division street in the city of New York (the street on which the property was situated) ; that he had formed an opinion as to the effect of the elevated railroad upon property in narrow streets through which the railroad passes ; this opinion was against the road ; that he thought it damaged property in narrow streets ; that it would require evidence to remove from his mind that opinion; that he came to the trial of this case with the opinion in his mind that the property owner had a just claim against the railroad, and that it would require evidence on the part of the railroad to remove that opinion ; that this opinion was founded upon information that he had received from friends of his who lived on these narrow streets and from the fact that houses have rented for very much less since the railroad than before ; that he had no personal knowledge of the facts, but that he should assume if he had property there that he would have lost something ; that he would not care to live on a street where the railroad passed by the house ; that if the defendant could prove to him that the premises mentioned in the complaint were worth more now than before the road was built he would not give a verdict against the road, but that unless the defendant satisfied him that it had not injured the property, he would give a verdict for the plaintiff; that he came to the trial with the opinion in his mind that the plaintiff was entitled to recover unless the defendant produced evidence sufficient to remove that opinion. In answer to certain question's put to him by counsel for plaintiff, he said that he thought that he would be capable of deciding this case on the evidence independent of what he had heard before the trial and give an impartial verdict upon the evidence ; that he was aware that by the law he would be obliged to disregard what he had heard and go upon the evidence ; that his mind was not so firmly made up that he would give a verdict contrary to the evidence, but that he came there prejudiced against the road ; that this prejudice could be removed with evidence ; that he could free his mind from that prejudice when he began to hear the evidence, and that he could observe the rule of law that the burden of proof is on the plaintiff; that he had not formed any opinion as to the extent of the injury done measured in dollars and cents ; that he had often expressed the opinion that the defendant was a wrongdoer as respects this property, but that he did not know anything about it.

The challenge of the defendant was overruled, the juror accepted, and the defendant duly excepted.

When trial by jury first was begun in England, it was the custom to take jurors who were acquainted with all of the facts, and it was not until trial by jury had obtained for some length of time, that persons who were unacquainted with the facts were called as jurors. They were not sworn as witnesses, but they were placed on the jury, and those other persons who were unaquainted with the facts, if any such there were on the jury, were removed from it. After a while this method of trial by jury went out of custom. It is difficult to determine when it was that persons who were totally ignorant of the facts of the case were first called to serve upon the jury. But in the time of Fortescue, says Hallam in his “ Middle Ages” (Vol. II. page 379) whose treatise “ De Laudibus Legem Anglia’'’ was written soon after 1450, we have the clearest proof that the mode of procedure before jurors by viva voce evidence was the same as at present. The following passage from Fortescue is then cited by Hallam : “ Twelve good and true men being sworn in as in the manner above related legally qualify, that is, having over and besides their movable possession in lands sufficient wherewith to maintain their rank and station, neither suspected by or at variance with either of the parties, all of the neighborhood, there shall be read to them in English by the court the record and nature of the plea at length which is depending between the parties and the issue thereupon shall be plainly laid before them concerning the truth of which those who are so sworn are to certify to the court, which done each of the parties by themselves or their counsel in presence of the court, shall declare and lay open to the jury all and singular the matters and evidences whereby they think they may be able to inform the court concerning the truth of the point in question, after which each of the parties has a liberty to produce before the court all such witnesses as they please or can get to appear on their behalf, who being charged upon their oaths shall give in evidence all that they know touching the truth of the facts concerning which the parties are at issue, and if necessity so require the witnesses may be heard and examined apart till they shall have deposed all that they have to give in evidence so that what the one has declared shall not inform or induce another witness of the same side to give his evidence in the same words or to the very same effect. The whole of the evidence being gone through the jurors shall confer together at their pleasure as they shall think most convenient, upon the truth of the issue before them, with such deliberation and leisure as they can well desire, being all the while in the keeping of an officer of the court in a place assigned them for that purpose, lest any one should attempt by indirect methods to influence them as to their opinion which they are to give into the court. Lastly, they are to return into court and certify the justices upon the truth of the issue so joined, in the presence of the parties, if they please to be present, particularly the person who is plaintiff in the cause. What the jurors so certify, in the laws of England is called the verdict.” Fortescue De Laudibus C. 26.

It is to be noted that the procedure on trial by jury as given by Fortescue,.is substantially the same as that which now obtains.

Fortescue in chap. 25 tells how a jury is to be impanelled and then goes on to say that “being so impanelled and appearing in court, either party may except against any particular person; as he may at all times, and in all cases by alleging that the person so- impanelled is of kin, either by blood, or affinity, to the other party ; or in some such particular interest, as he cannot be deemed as an indifferent person to pass between the parties, of which sort of exceptions there is so much variety as is impossible to show in a small compass. If any one of the exceptions be made to appear to the court to be true and reasonable, then he against whom the exception is taken shall not be sworn, but his name shall be struck out of the panel. In like manner shall be done with all the rest of the panel, until twelve be sworn so indifferent as to the event of the cause, that neither of the parties shall have reasonable matter of challenge against them.”

Coke says that the principal challenges to the poll may be reduced to four heads. (1). For respect of honor ; (2). For want of default; (3). For affection or partiality; (4). For crime or delict. That the causes of favor are infinite, and that the rule of law is that the juror must stand indifferent as he stands unsworn. Coke upon Littleton, 156b, 157b.

In the case of McKinney v. The Long Island Railroad, 6 N. Y. Supplement, 168, to which our attention was called by the counsel for the respondent, the court said that the challenge to the juror was properly overruled; the juror stated that notwithstanding his sympathies he could render an impartial verdict upon the evidence. It will be noticed that in this case the juror had but sympathy for the plaintiff. And the court also said (and to this the counsel did not call our attention) that the juror stood on the extreme limit of competency. Now, if this juror who had only sympathy, stood on the extreme limit of competency, it seems to us that a juror who had made up his mind against the defendant and whose opinion against the defendant was so strong that it would require evidence to remove it, is not on the limit of competency but is beyond it and is not competent. The juror did not stand -indifferent to the parties.

It was said by Judge Beardsley in Freeman v. The People, 4 Den. 35, that if triers “ find that bias actually exists in the mind of the juror, although it is proved only by the formation of a hypothetical opinion, they may, and ought to, reject him. Some minds are so constituted that such an opinion would exert a controlling influence in the jury box, while with others its influence would be neither seen nor felt * * * * the triers must find that the juror stands impartial and indifferent, or they should reject him.” See also Blake v. Millspaugh, 1 John. 316 ; Pringle v. Hulse, 1 Cow. 433 and note at p. 436; Coleman v. Hagerman, cited and commented on in Ex parte Vermilyea, 6 Cow. 564, and in the People v. Mather, 4 Wend. 243.

We are of the opinion that the judgment and order should be reversed and a new trial ordered with costs to the appellant to abide the event.

Freedman, J., concurred.  