
    People v. Larned.
    
      Impannelling of jwry. — Circumstantial evidence. — Charge of the court.
    
    If the name of a juror he called, and he do not appear, it must be returned to the box, with the undrawn ballots ; and if he subsequently return into court, neither party can require that he be sworn upon the panel.
    The tools wherewith a burglary is supposed to have been committed, may be exhibited to the jury, in connection with evidence tending to show that they were used in the perpetration of the crime, and to connect them with the defendant on trial.
    The judge may properly call the attention of the jury to the questions of fact upon which they must necessarily pass ; and where there is conflicting evidence, instruct them as to the effect of discrediting either class of witnesses.
    Wbit of Eebob to the Supreme Court, sitting in the sixth district, where the judgment of the Otsego oyer and terminer had been affirmed, on certiorari.
    
    The plaintiff in error, Abijah Lamed, was tried for burglary, in the oyer and terminer; convicted of burglary in the third degree; and sentenced to imprisonment in the state prison for the term of five years. The indictment charged him with breaking into the Otsego county bank, in the village of Cooperstown, on the 29th December 1850, at one o’clock in the morning, and stealing therefrom about $30,000 in specie and banknotes.
    *On the trial, before Mason, J., after the names of ten jurors had been drawn, eight of whom had answered, the name of John Cushman was drawn, who did not answer; the drawing of the jurors was, thereupon, suspended for a short time, at the request of the prisoner’s counsel, and on being resumed, the latter stated that John Cushman had come into [*446 court, and insisted that he should be sworn on the panel. The court disregarded the request, and directed the clerk to proceed with the drawing. The prisoner’s counsel then requested that John Cushman might be called, which the court denied; and to these rulings, exceptions were taken.
    * aah 1 * After the teller of the bank had detailed the -* circumstances of the burglarious entry, the district-attorney proposed to exhibit to the jury certain burglar’s tools, which had been found in the vicinity of Cooperstown, in connection with other evidence tending to show that they were those with which the bank was broken open, and to connect the prisoner with them. An objection thereto was overruled, and an exception taken.
    * 448 1 *^ defence attempted to prove an alibi, and J examined three witnesses to show that the prisoner was in Oxford, in the state of Massachusetts, from the 25th December 1850, to the 4th January 1851.
    The learned judge, in his charge to the jury, said— “that the defence interposed by the prisoner was what was in law denominated an alibi, and if the three witnesses called by him to sustain it, had testified truly, the prisoner should be acquitted; that it was, however, insisted by the prosecution, that the defence was a fabricated one, and sustained by perjury; that this * aaq i issue J'ury *were to determine. That it was -* undoubtedly true, that the defence of an alibi is not unfrequently the felon’s plea ; that when a prisoner finds himself surrounded by facts and circumstances which threaten to overwhelm him and establish his guilt, he, not unfrequently, resorts to this defence, and seeks to maintain it by perjured witnesses ; and that it was the remark of an eminent judge in England, that in his opinion, more perjury had been cortbmitted in defences of this description, than in all other defences interposed in criminal trials.” The prisoner’s counsel took an exception to the words given in italics.
    
    
      The learned judge further instructed the jury, that in defences of this character, time is an important element, and in fabricated defences, which are to be sustained by perjury, the witnesses generally have some memorandum, entry or other fact, by which they fix with certainty the date. To this another exception was taken. •
    The judge then remarked, “ that it would have been more satisfactory to the mind of the court, and probably to that of the jury, if the prisoner had called the domestics of the house where he is said to have been confined by illness, and others of his near neighbors, who had seen him, from day to day, from the 25th day of December to the 4th of January following, to prove this defence; but he was not called upon to prove his defence by a larger number of witnesses than he has called, if these witnesses are truthful. That the witnesses called to prove that the prisoner was at the house of his mother, during this period, were not the near neighbors of the prisoner; that of these witnesses, Lamb lived a mile from the defendant, Eawson, three miles, and Bacon, about twelve. That it occurred to the mind qf the cou/rt, that witnesses might be more easily procured to sustain a fabricated defence, by selecting them, from so wide a territory, than where the neighbors were indiscriminately called; but of this you will judge. That it certainly would have been more satisfactory, if the defendant had sustained this defence, by calling the inmates of the house where it was alleged he was, during this period, and especially, his mother and the wife of Otis Lamed.” The prisoner’s counsel took an exception to the last two preceding sentences of the charge.
    *The judge concluded his charge, as follows: ^ “ You are to determine, in the first place, whether *- the prosecution have proved their case, and if they have, whether the prisoner has established his defence. The law requires the prosecution to prove their case — to establish it beyond reasonable doubt; if there are reasonable doubts in the case, those .-doubts are to inure to the acquittal of the prisoner; the law never demands a victim; it never requires the conviction of an innocent man, for the purpose of bringing some guilty person to punishment. The doubts which should acquit in criminal cases are, however, not those. doubts which may arise in a speculative mind, after the case is proved, and the judgment thoroughly convinced., -If you-are satisfied from the evidence in the case, that the prisoner at the bar is, beyond reasonable doubt, guilty of-thé offence charged, then it is most certainly your, duty to convict him; for the public interests require that. persons who are traversing the country with such skilful and powerful machinery, breaking into the banking institutions of the country, should not be permitted to escape. On the other hand, you are to look .to the rights of the prisoner, and see that they are properly protected by. your verdict, and if you have reasonable doubts in- the case, they are to inure to his benefit.- Your duty requires, gentlemen, that you should give to. the case a full, fair and faithful consideration; and I have no doubt, gentlemen, but you will render such, a verdict as is "due to the proper administration of public. justice and the safety of the community; and.the public, interests, will.be-protected by such a verdict; and the prisoner’s rights .properly secured.. .You, however, have the responsibility of this case; you should - render such a verdict as. accords with your, own convictions of duty; such a verdict as will satisfy your, own. consciences^; so that in after-life you will have no regrets at. the verdict you have rendered. With such a verdict, the cowrt will be satisfied, the prisoner cannot complain, and the.public cannot.expect less. • The prisoner’s counsel excepted to the words. iu.italics. in the last paragraph of the charge..
    . *The prisoner having been convicted and sen- * ^ 3 tenced, the case was removed, to the supreme court by certiorari, where the conviction was affirmed; whereupon, this writ of error was sued out.
    
      Pruyn, for the plaintiff in error.
    
      Brown, for the People.
   Ruggles, C. J.

There was- no error in impannelling the jury. The statute (2 R. S. 420, § 61) directs, that “ the first twelve persons who shall appear, as their names are drawn and called, and shall be approved as indifferent between the parties, shall be sworn and *shall ^ be the jury to try the issue.” And § 67 directs, *- ‘ that if any juror be absent, at the time his name is drawn and called, the ballot containing his name shall be returned to the box containing the undrawn ballots. These directions were literally and. exactly followed. John Cushman, a juror on the panel, was absent and did not appear when his name was called. Perhaps, it was in the discretion of the court to direct his name to be called a second time, but neither party could require it to be done, as a matter of right. The objection to the course directed by the court is groundless.

The tools found near Cooperstown, shortly after the burglary, were rightly allowed to be exhibited to the jury. They were offered together with evidence tending to show the prisoner’s connection with the tools and with the offence; and their production and exhibition were followed up by strong proof to that effect. The exhibition of the tools themselves afforded better and more satisfactory evidence to the jury, than any description of them from the testimony of witnesses.

The evidence to show that the tools with which the bank was broken open, came from the premises in Oxford, Massachusetts, on which the defendant resided with his mother, over twc hundred miles from the place where the offence was committed, was properly received, in connection with the proof which had already been given. It had been shown, that the prisoner was seen, on the day after the robbery, under very suspicious circumstances, so near to the place where it was committed, that he might have committed it. Proof that the implements used in the commission of the offence came from his home, was a circumstance very proper to be submitted to the jury, in connecting him with the crime. The evidence in relation to the bars of iron found in the granary of Barton, one of his neighbors, in Massachusetts, was admissible, on the same principle. It had a tendency to show that the tools came from near his residence, and from a place to which he probably had access, and was receivable as circumstantial evidence.

There was nothing in the comments of the presiding judge *to the jury upon the facts, either censur453 ] able in itself, or erroneous in point of law. The conviction or acquittal of the prisoner depended upon the question, whether the jury gave credit to the witnesses called by him to prove an alibi, or whether they believed the witnesses who testified to having seen him at Rome and at Deerfield, shortly after the offence was committed. If they believed the witnesses last mentioned, they could not have believed those who swore to the alibi. The case was fairly submitted to the jury.

Judgment affirmed. 
      
       See Foster v. People, 63 N. Y. 619, s. c. 3 Hun 6, as to what is sufficient evidence to connect a prisoner on trial, with the owrership of a set of burglar’s tools, found in an express office.
     