
    The People of the State of New York, Resp’ts, v. Arthur J. McQuade, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. Criminal law—Trial—Empanneling of Jury—Peremptory challenges—People MUST FIRST EXERCISE RIGHT—ORDER OF EXERCISING RIGHT IS IMPERATIVE AND NOT DIRECTORY—CODE GRIM. PRO., § 885.
    In empanneling the jury in this case, each juror drawn as he was called, was examined first by the prosecution and then by the defense as to his qualifications as a juror, no formal challenge being interposed by either party, and unless set aside by the court for bias or other cause, took his seat in the box, but without being then sworn as a juror in the case. Neither party exercised the right of peremptory challenge until after the hox was full; The people then challenged peremptorily six of the twelve jurors in the hox, and others were selected to take their places, and the district attorney then declared himself content with the jury. The defendant then challenged peremptorily some of the jurors in the box, and their places were filled as before. Subsequently the prosecution, against the objection and exception of the defendant, was permitted to challenge peremptorily jurors who were in the hox, when the district attorney first declared himself content. The court overruled the point raised by the defendant, that the people were bound to exercise the right of peremptory challenge first, and ruled that either side had a right to interpose a peremptory challenge up to the very moment the jury were sworn. Held, that the ruling was erroneous; that the order in which peremptory challenges are to be taken is a matter of substance; that Code Criminal Procedure, section 885, so far as it requires the people to first exercise the right of peremptory challenge, is peremptory and not directory; that the right of peremptory challenge given to an accused person is a substantial right; that the violation of the provision of the statute is not a mere technical error. Peckham and Gray, JJ., dissenting.
    S. Same—Exception lies to judges ruling as to competency of juror— Code Grim. Pro., § 455-
    Under Code Grim. Pro., § 455, the decision of the trial judge on the question of indifference of a juror is not reviewable, except in the absence of any evidence to support it, in which case it is an error of law to which an exception lies. Peckham and Gray, JJ., dissenting.
    3. Same—When a person with an opinion qualified to act as a juror— Code Grim. Pro., § 376.
    An existing opinion by a person called as a juror of the guilt or innocence of a defendant charged with crime is prima facie a disqualification, but it is not a conclusive objection, provided the juror makes the declaration specified in Code Grim Pro., § 376, and the court as judge of the fact is satisfied that such opinion will not influence his action. But the declaration must be unequivocal. Gray, J., dissenting.
    4. Same—When not qualified.
    It does not satisfy the requirement of the statute if the declaration ia qualified or conditional. It is not enough to be able to point to detached language, which alone considered would seem to meet the statute require-meat, if on construing the whole declaration together it is apparent that the juror is not able to express an absolute belief that his opinion will not influence his verdict. Gray, J., dissenting.
    5. Same—Error in overruling a challenge por cause not cured by FACT THAT DEFENDANT DID NOT USE ALL HIS PEREMPTORY CHALLENGES.
    The trial court cannot disregard a challenge for cause and turn the party making it over to his peremptory challenges. The fact that the party still has peremptory challenges at his command does not deprive him of any redress which the law would otherwise give for a violation of his right. The prisoner is not bound to resort to his right to make peremptory challenges. The fact that he did not fully exhaust his peremptory challenges does not preclude him from raising objections to the overruling of a challenge for cause. Gray, J., dissenting.
    6. Same—Challenge for implied bias—Acquaintance with counsel NOT A GROUND OF CHALLENGE.
    A juror was excluded because he was acquainted with one of the counsel for the defendant and had advised with him on some occasion not connected with the case on trial. Held, error; that there was no such ground of challenge.
    7. Same—Exclusion of juror legally drawn without cause is error.
    Jurors legally drawn can only be excluded by the court for legal cause. The court cannot arbitrarily and without cause set aside a competent juror. Pbckham and Gray, JJ., dissenting.
    8. Same—Evidence—Absence of co-conspirator cannot be proved— Rule as to admissibility of evidence.
    The prosecution was permitted against the objection and exception of the defendant, to prove by the clerk of the court that a certain alderman, a member of the “ combine ” had been indicted for bribery, and had not been brought'to trial, and that certain other persons also implicated in the bribery, were at the time of the trial, absent from the jurisdiction of the court. This was offered as corroborative evidence of the story of accomplices. Held, that it was incompetent for any purpose; that the admission of this evidence was in contravention of the settled rule that only the acts and declarations of a co-conspirator, done in furtherance and execution of the common design, are admissible against a conspirator on trial for the common offense, and that when the conspiracy is at an end, and the purposes of the conspiracy have been fully accomplished, or the conspiracy has been abandoned, no subsequent act or declaration of one of the conspirators is admissible against another, Gray, J., dissenting.
    9. Same—Evidence as to agreement to give false evidence to a senate COMMITTEE SUBSEQUENT TO CONSPIRACY NOT ADMISSIBLE.
    The evidence that DeLacy, just before Fulgraff’s examination before the senate committee, which occurred two years after the conspiracy had been accomplished, had a consultation with him and gave him directions how he should testify was admitted. Held, that the people were not entitled to show that Fulgraff’s former testimony, which he admited was false, was given on consultation with DeLacy, one of the combine, and in pursuance of an arrangement, to which the defendant was not a party. Gray, J., dissenting.
    Appeal from a judgment of the supreme court, general term, fifth department, affirming a judgment of the court of general sessions of New York county, entered upon a verdict convicting the defendant of the crime of bribery. The facts are fully stated in the opinion.
    
      Benj. F. Tracy, for appl’t; McKenzie Semple, assistant district attorney, for resp’ts.
    
      
       Reversing 15 N. Y. State Rep., 916.
    
   Andrews, J.

This is one of the series of cases arising on indictments for bribery in connection with the grant of the Broadway Surface Railroad franchise by the common council of the city of New York, in 1884. The defendant was a member of the board of aldermen, and voted for the granting of the franchise. He has been twice tried on the indictment. On the first trial the jury disagreed; and on the second trial in November, 1886, he was convicted. The conviction was affirmed on appeal to the general term of the supreme court, and this appeal is from the judgment of affirmance. Exceptions were taken by the defendant on the trial to certain rulings in the proceedings in empanelling the jury, to the admission and rejection of evidence, and to the charge to the. jury, and to refusals to charge.

The assignments of error are to be considered and decided in view of section 543 of the Code of Criminal Procedure, which requires the appellate court, on an appeal in a criminal case to “give judgment without regard to technical errors or defects which do not affect the substantial rights of the parties.” The questions in respect to the empannelling of the jury will first be considered. Each juror drawn, as he was called, was examined first by the prosecution and then by the defense, as to his qualifications as a juror, no formal challenge being interposed by either party, and unless set aside by the court for bias or other cause, took his seat in the box, but without being then sworn as a juror in the case. Neither party exercised the right of peremptory challenge until after the box was full. The people then challenged peremptorily six of the twelve jurors in the box, and others were selected to take their places, and the district attorney then declared himself content with the jury.

The counsel for the defense. thereupon, before the defendant had exercised the right of peremptory challenge at all, claimed and insisted that the prosecution were bound, if it desired to challenge peremptorily any of the jurors then in the box, to exercise the right at that time and before the defendant exercised his right. The court refused at that time to rule upon the point, and the defendant excepted. The defendant then challenged peremptorily some of the jurors, in the box, and their places were filled as before. Subsequently the prosecution, against the objection and exception of the defendant, was permitted to challenge peremptorily jurors who were in the box when the district attorney first declared himself content, and among the jurors so peremptorily challenged by the prosecution were jurors who were in the box when the district attorney first exercised the right of peremptory challenge, and who were not among the six excluded upon his peremptory challenge in the first instance. Afterwards the district attorney was permitted in repeated instances, against the remonstrance and exception of the defendant, to resume the right of peremptory challenge after peremptory challenges had been interposed by the defendant, and to challenge peremptorily jurors who were in the box when the defendant commence!! to challenge, not excluded on his challenge, and as to whom the district attorney had before declared himself content. The court several times overruled the point raised by the defendant, that the people were bound to exercise the right of peremptory challenge first. The court on one occasion said, ‘ I have already passed upon that subject. I did hold, probably not in this case, nor in this trial, but I did on a former trial, that either side had a right to interpose a peremptory challenge up to the very moment the jury were sworn. I shall adhere to that ruling and give you the benefit of an exception.”

The ruling was plainly erroneous. The subject is regulated by statute. Section 385 of the Code of Criminal Procedure, as amended in 1882, declares that “challenges to an individual juror must be taken first by the people and then by the defendant.” The next section prescribes the order in which challenges shall be taken—first, challenges for cause, and next peremptory challenges. The language of section 385 precludes argument.

The learned judge, in overruling the defendant’s contention, acted doubtless under a misapprehension of the statutory rule.

The only answer to the exception of the defendant on this point, if there is any, is to be found in section 542, before quoted. If the error did not affect a substantial right of the defendant, it must be disregarded. We are of opinion, however, that the order in which peremptory challenges are to be taken, is matter of substance, and that section 385, so far at least as it requires the people to first exercise the right of peremptory challenge, is imperative and not directory. The right of peremptory challenge given to an accused person is a substantial right.

Blackstone says, “It is full of tenderness and humanity to prisoners for which the English laws are justly famous.” 2 Bl. Com., 352.

By the ancient common law it seems that the crown had the right of peremptory challenge, but this was changed by statute 33, Ed. 1, St. 4, which took away the right and required the king to assign cause of challenge in all cases. This statute was evaded to some extent by the construction of the courts, which permitted the prosecution to set aside a juror for the time being without assigning cause until after the whole panel was gone through with, and it appeared that a full jury could not be obtained without the juror challenged. 2 Haw. Ch., 43, sec. 3; Bish. Crim. Pro., sec. 937, et seq. In this state a limited right of peremptory challenge was given to the people on trials of indictments for murder and other felonies, by chap. 332 of the Laws of 1858, five on trials of indictments for murder and felonies punishable with imprisonment for more than ten years, and in other cases three. But the defendant was allowed twenty peremptory challenges in case of an indictment for murder or felony punishable with ten years or more imprisonment. 2 R. S., 734, sec. 97.

By chap. 427, of the Laws of 1873, it was provided that on the trial of all felonies or misdemeanors the prosecution should be entitled to the same number of peremptory challenges as are given to the defendant. It will be observed that from the earliest times the right of peremptory challenge was the especial privilege of the accused. The statute of Edward I was enacted, as Lord Coke says (Coke Lyt. 1566), to put an end to the practice of permitting the king to challenge peremptorily, because it was found to be mischievous to the subject, tending to infinite delays and dangers.

When first permitted in this state the right was greatly restricted, and until the act of 1873 a much larger number of peremptory challenges was given to an accused person than to the prosecution. The act of 1873 did not prescribe in what order the right of peremptory challenge should be , exercised. This was first prescribed by section 385 of the Code of Criminal Procedure, and the requirement of that section that the people shall challenge first, is the only substantial advantage remaining to a defendant. The requirement of section 542 of the Code of Criminal Procedure is to be reasonably and fairly applied. The court is no longer required to reverse a conviction because a mere technical error is disclosed by the record. If error is found it may be disregarded if it appears that no substantial right of the defendant was prejudiced. But it is plain that every statutory provision intended for the benefit of the accused confers a substantial right which cannot be disregarded without his consent.

In civil cases where property is sought to be taken or title divested under statutory proceedings, it is the familiar and settled doctrine that the statute must be strictly followed, and every provision having the least semblance of benefit to the owner must be complied with, or else the proceeding is void. The same principle applies with even greater force where the proceeding may affect life or liberty. It is plain, we think, that the statute prescribing the order of peremptory challenges in criminal cases that the right should be first exercised by the people was intended for the benefit of the defendant. The prosecution being first required to exhaust its peremptory challenges relieves the defendant from using his challenges in cases where the juror challenged by the prosecution was also unacceptable to the defendant, and thereby preserves his challenges to be used in other cases. There is a choice, moreover, as between qualified jurors. Both the prosecution and the accused may reject a qualified juror without assigning cause. The right of peremptory challenge was originally given to the accused that he might exclude from the jury a juror against whom he entertained a prejudice, although not founded upon any reason which would disqualify him.

So, also, where he has a preference in favor of a juror legally selected and qualified to sit, who is not peremptorily challenged by the prosecution in the first instance, the observance of the statute secures to the accused his presence on the jury. On the other hand, if the prosecutor is permitted to reserve its peremptory challenge, after the right has been exercised by the defendant, he is enabled to acquire information as to what jurors are satisfactory to the defendant, and to exclude them from the panel for that reason. This is an advantage to which, under the statute, he is not entitled. If the practice pursued in this case can be maintained, we see no reason why the prosecutor might not in the first instance have refused to challenge at all, reserving his right to challenge peremptorily until after the defendant had challenged. The statute would be nullified in that case no more than by the course actually pursued, The error of the court in disregarding the statutory rule, affected, we think, & substantial right of the defendant. The statute prescribing the order in which peremptory challenges should be made, was not a mere rule of procedure for the orderly conduct of criminal trials. It was a right secured to the defendant. It had, at least, the semblance of benefit to the accused. The statute is peremptory, and violation of its provisions was a substantial, and not a mere technical error. Three persons who served on the jury, viz.: Henry Orenburg, George K Davis and John J. Ross, were each examined preliminary on oath as to their qualifications as jurors, and were declared competent by the court. The defendant excepted to the ruling, and it is insisted that these jurors should have been excluded from the jury on the ground of their having formed and expressed an opinion touching the guilt or innocence of the defendant, and were not impartial.

The general term, in its opinion, in considering the exception taken to the ruling of the court in respect to these jurors declared that the jurors, Ottenburg and Davis, upon their own statements, were clearly incompetent to sit as jurors under the decision in the case of Greenfield v. People (74 N. Y., 277), and “should have been rejected.” But the opinion goes on to state that the “error is not fatal for the reason that the defendant had, when the jury were about to be sworn, four peremptory challenges, and he could have protected himself by the use of these from the apprehended injustice of the acceptance of the objectionable jurors.”

Before proceeding to the particular consideration of the exceptions, the overruling of the exceptions to these jurors, and. to avoid misconstruction of our conclusion, it is proper to consider what power is vested in an appellate court by the present Code of Criminal Procedure in reversing the decision of a trial court overruling a challenge for actual bias. Section 376, subdivision 2, of the Code, defines actual bias to consist in the existence of such a state of mind on the part of the juror, which satisfies the court in the exercise of a sound discretion, that such juror cannot try the issue impartially and without prejudice to the subtantial rights of the party challenging. It is substantially what was formerly known as a challenge to the polls for favor, the question being as to the indifferency of the juror, as matter of fact, as distinguished from a challenge for principal cause, where the law, upon the challenge being found to be true, adjudged the juror disqualified. It was well settled under the former practice, prior to the act, chapter 427, of the Laws of 1873, that on the trial of a challenge to the polls for favor, the decision of the triers or of the court (where the court was substituted as the triers), on the question of indifferency, was final and not reviewable. People v. Bodine, 1 Den., 308; Sanchez v. People, 22 N. Y., 147.

But the act of 1873, which made all challenges triable by the court only, provided for a review on writ of error or certiorari of any decision of the court on the trial of a challenge. It was subsequently held in People v. Thomas (67 N. Y., 218), in construing the act of 1873, that it extended the power of the appellate court in respect to the review of the decision of the court on challenges for favor, and conferred jurisdiction on writ of error or certiorari, to review the decision of the trial court on the facts as well as upon the law. This decision was followed in Greenfield v. People (supra), and the court in that case reversed the conviction on the ground that the trial judge erred in his judgment on the facts, in overruling challenges for favor interposed to two of the jurymen who sat in the case.

These decisions would be authoritative as to our right in the present case to review the determination of the trial judge on the merits in the case of the jurors Ottenburg, Davis and Ross, if the statute of 1873 is still in force, and to reverse the conviction if we reach the conclusion that the decision of the trial judge that the jurors were free from actual bias, although not erroneous as matter of law, was nevertheless erroneous in fact, and that in the exercise of a wise discretion and in justice to the'defendant these jurors ought to have been set aside. But section 455 of the Code of Criminal Procedure, explicitly confines exceptions which may be taken by a defendant on the trial of indictments to exceptions made to the decision of the court, on matter of law, “and not otherwise,” in the following cases: (1) In disallowing a challenge to the panel of the jury; (2) in admitting or rejecting testimony on the trial of a challenge for actual bias to any juror who participated, or in allowing or disallowing such challenge; (3) in admitting or rejecting witnesses or testimony, or in deciding any question of law, not a matter of discretion, or in charging the jury. It will be observed that by this section an exception lies to the improper admission or exclusion of evidence on the trial of a challenge to a juror who participates in the verdict, or where as matter of law the court erred in allowing or disallowing a challenge. But no right is given to except to the decision of a judge on the facts, and we find no provision in the Code for a review of decisions on the trial other than those to which an exception lies. It seems, therefore, that the Code has restored the law as it originally stood, and that the decision of the trial judge on the question of indifferency is not reviewable, except in the absence of any evidence to support it, in which case it is an error of law to which an exception lies.

The question raised on the exceptions to the decisions of the court in overruling the challenges to the jurors Ottenburg, Davis and Boss, turns, therefore, upon the point whether the evidence disclosed a condition of mind on their part which, as matter of law rendered them incompetent jurors for actual bias.

We fully concur with the opinion of the general term that these persons ought not to have been permitted to sit as jurors, and we are further of opinion that some of them at least were legally incompetent by reason of actual bias, disclosed on the face of their own testimony. The juror Ottenburgh stated that he had read and talked of the case, and had formed an opinion touching the guilt or innocence of the defendant prior to his first trial; that he had read much of the evidence on that trial and that his opinion remained the same; that it amounted to a conviction; that / what he had read of the proceedings of the board of aider-men in respect to granting the franchise to the Broadway surface road, had created a strong and decided prejudice against those members who voted for it; being asked, “And that prejudice would go with you in the jury box, would it not ?” answered, “If I am sworn I would take it with me in the jury box, and it would remain with me until the evidence in the case was sufficient, in my opinion, to remove that prejudice, and whether it would be sufficient or not I cannot tell until I hear it, and whether the prejudice I now have would influence my verdict, would depend on the strength of the evidence that would be introduced in the case; if the evidence was very strong and very convincing, it would do away with my opinion, and if it was not, I would have my opinion.” The juror, both before and after giving this evidence, stated in answer to the question of the' district attorney, following substantially the language of section 376 of the Code, that he believed such impression or opinion would not influence his verdict, and that he could render an impartial verdict according to the evidence. But at the very conclusion of his examination he stated in response to an inquiry of the defendant’s counsel, that substituting the word “ opinion ” for the word “ prejudice, ” he intended to stand by the answers previously given to the questions of the defendant’s counsel.

The juror Davis stated on his examination by the defendant’s counsel, that he had both formed and expressed an opinion in the case—a decided opinion

_ Q. And would it remain with you and influence your action as a juror until there had been evidence sufficient introduced to remove or change it ? A. Well, I don’t know how I would answer that; if the testimony was given as before, I think opinion would be the same.

Q. Then I infer that you have read something of all the evidence given on the former trial ? A. Very carefully.

Q. The whole of it ? A. Yes, sir; substantially so,

Q. And upon that you formed your opinion ? A. I did.

Q. And if the evidénce proved to be correctly reported, proved to have been correctly reported, then your opinion as a juror will be the opinion you now entertain ? A. If the sworn testimony is given, yes, sir; and unless there was testimony introduced on one side or the other on this trial sufficient to change the opinion that I formed from the testimony taken on the other trial, I would render my verdict according to my present opinion.

Q. And would that opinion influence you in the reception of the evidence as it came from the witness stand, that is to say, as a witness appeared on the stand to-day on this trial, and you, notwithstanding what yon had read of his evidence before, would you be predetermined one way or the other to credit or discredit that witness’ testimony by your present opinion ? A. I think not.

Q. You think not? A. I think perhaps the evidence might appear different to me when I heard it directly given than when I read it.

Q. You think your present opinion would not affect the weight or influence that you might give to the evidence in this case as it was delivered from the witness stand ? A. I think it would not; I might he unconsciously influenced; I do not know; I think it would not influence.

Q. Do you suppose that if the evidence as delivered by the witness on this trial should leave your mind somewhat in doubt as to the verdict at which you should arrive, would your present opinion influence you in that event one way or another ? A. I do not know how to answer that question; if it left my mind in doubt I should not want to vote either way.

Q. Well, suppose you should find yourself in that position on this trial, should your present opinion influence or guide your action at all. A. It might.

Q. Do you believe it would in that event? A. Well, I really could not say what effect it would have.

Q. Are you in doubt as to what effect it would have? A. I am, and am not able to say what effect it would have in that event.

The juror further stated “I have discussed it (thecase) with a great many people, but not always expressed an opinion, but I have expressed an opinion several times.

Q. How many different times, and on how many different occasions should you say you had given expression to your opinion. A. Well, half a dozen times.

Q. And to half a dozen persons? A. Well, there may have been sometimes several people present when the opinion was expressed. I have entered into a discussion on the subject with people when sometimes different sides were maintained, one maintaining one side, and the other the other; and it has been a subject of discussion between us, and as a result of that discussion, opinions have been expressed.

The juror, Ross, had read more or less of the testimony on the former trial, had formed an opinion which he then entertained, and his condition of mind in respect to the case was very similar to that disclosed to the jurors Ottenburg and Davis.

It is very clear that prior to the act of 1872, these jurors would have been excluded on a challenge for principal cause. So, also, under the act of 1873, according to the case of Greenfield v. People (supra), this court would have reversed the conviction for the error of the trial court in its finding on the fact in respect to actual bias. There has been no change in the fundamental rule that an accused person is entitled to be tried by a fair and impartial jury. Formerly the fact that a juror had formed and expressed an opinion, touching the guilt or innocence of a person accused of crime, was, in law, a disqualification, and although he expressed an opinion that he could hear and decide the case upon the evidence produced, this did not render him competent. The statute of 1872, changed the pre-existing rule by enacting in substance that an existing opinion or inference as to the guilt or innocence of an accused person, should not be a sufficient ground of challenge to a juror, if he could declare on oath his belief that such opinion or inference would not influence his verdict, and that he could render an impartial verdict according to the evidence, and the court should be satisfied that the juror did not entertain such a present opinion Or impression as would influence his verdict. The substance of this provision in the act of 1872, is incorporated in section 376 of the Code of Criminal Procedure.

Now, as formerly, an existing opinion by a person called as a juror, of the guilt or innocence of a defendant charged with crime, is prima facie a disqualification, but it is not now as before, a conclusive objection, provided the juror makes the declaration specified, and the court as judge of the fact, is satisfied that such opinion will not influence his action. But the declaration must be unequivocal. It does not satisfy the requirement of the statute if the declaration is qualified or conditional. It is not enough to be able to point to detached language, which alone considered would seem to meet the statute requirement, if on construing the whole declaration together, it is apparent that the juror is not able to express an absolute belief that his opinion will not influence his verdict.

It cannot, we think, be justly claimed that the jurors Ottenburg and Davis, in view of their testimony, as a whole, made the declaration required by the statute. They had an opinion in the case which was a conviction. It was founded upon the must authentic knowledge of the criminating facts, viz: the testimony on the former trial, which was reproduced on the trial in which they participated. Fairly construed their declaration of their belief that they could render an impartial verdict, was qualified by a doubt, and was not sure and absolute. The defendant was at least, entitled to a certain and unequivocal declaration of their belief that they could decide the case uninfluenced by their previous opinions, and this their evidence taken as a whole, did not contain, and as matter of law, they should have been set aside. The answer of the general term to this assignment of error, that when the jury was sworn, the defendant had four peremptory challenges unused, which he might have employed in excluding the three jurors in question, was not sufficient. This precise question was considered and determined by the old supreme court in People v. Bodine (supra), and again in Freeman v. People (4 Den., 31), both notable cases in this state. In People v. Bodine, the prisoner had challenged but thirteen jurors peremptorily, although she might have challenged twenty.

It was argued that as she might have excluded all those who were challenged for favor and improperly allowed to sit on the jury, she was precluded from availing herself of the exception. But in answer to this claim Bearsdley, J., in pronouncing the opinion of the court reversing the conviction, said, “every person on trial is entitled to a fair and impartial jury, and to secure this object challenges for cause are allowed and are unlimited. If adequate cause be sho wn, the juror in every instance should be set aside. This is the right of the party challenging and is in no case to be granted as a favor. Such is plainly the law where peremptory challenges do not exist, and where they do, the rule is the same. Those who challenge peremptorily, may challenge for cause. Nor is this an idle ceremony which the judge may, in any case, overlook or disregard. He is bound ex debito justitiae, to receive the challenge and dispose of it as the law requires. He certainly would not be allowed to disregard a challenge for cause, and turn the party making it over to his peremptory challenges; nor, in my opinion, can the fact that the party still has peremptory challenges at his command, deprive him of any redress which the law would otherwise give for a violation of his right. In no case is the prisoner bound to resort to his right to make peremptory challenges. It is armor which he may wear or decline at his pleasure. It is for his own exclusive consideration and decision, and the court has no right toi interfere with his determination. Nor should the prisoner’s refusal to make use of her peremptory challenges, as she might have done, preclude her from raising objections to what was done by the judge; and if, in truth, errors were committed, I do not see that it is less our duty to correct them, than it would have been if the prisoner had fully exhausted her peremptory challenges.”

This doctrine, so fully, and carefully enunciated in this case, was reaffirmed in People v. Bodine. The decision in People v. Bodine, made in 1845, has been regarded as the settled law of this state upon this question from that time, and the casual observations of the court in People v. Casey (96 N, Y., 115), and People v. Carpenter (102 N. Y., 288; 1 N. Y., State Rep., 648), where the point was not a material one, were not intended to disturb or overrule the doctrine settled by the prior cases.

The defendant by the use of three of his remaining challenges might have excluded the three jurors from the box. This would have left him but one peremptory challenge to use in filling their places. He could not know that jurors less objectionable would be selected, nor that the district-attorney might not then use his remaining peremptory challenges as he had done before in rejecting jurors in the box, with which both parties had declared themselves content. The defendant was not compelled to place himself in this dilemma, but was entitled to rely upon his exception to the overruling of his challenges for bias. Exceptions were taken to other rulings on the empanelling of the jury, only one of which will bemoticed.

One Platt was called as a juror and the district-attorney proceeded to examine him as to his qualifications. He was asked if he knew any of the lawyers engaged in the case, and he answered that he knew Mr. Newcombe, one of the counsel for the defendant. The record then proceeds as follows:

“ Q. Had you any business with him? A. Very little.
Q. Has he been counsel for you, Mr. Platt? A. He has not in any case; just for advice.
Mr. Martins—I submit the challenge.
The Court—I think he had better be excused. He says he has advised with Mr. Newcombe. You (Mr. N.), have so many clients you cannot recollect them all.
The Witness—Well, it is a kind of roundabout matter.
Mr. Newcombe—I don’t know that I was ever counsel for Mr. Platt.
The Court—He says you gave him advise.
The Witness—Not in any business way, only I was called there.
The Court—I think your acquaintance with Mr. Newcombe will disqualify you from serving in the case.
Exception by defendant.”

The juror was excluded because he was acquainted with one of the counsel for the defendant and he had advised with him on some occasion not connected with the case on trial. We know of no such cause of challenge. The Code defines certain relations between a juror and a party as a ground of challege for implied bias, among which is the relation of client and attorney and confines the causes of challege for implied bias to the enumerated cases, and the cause for which this juror was excluded is not among them. Code, § 377.

The Code also- defines actual bias as the existence of a state of mind on the part of the juror in reference to the case or to either party, as satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging (§ 376), and declares that a challenge for actual bias cannot be taken for any other cause. Section 378.

We have found no precedent for excluding a juror upon the ground assigned by the court, and in reason it seems quite insufficient, nor is it warranted by the statute. But it is insisted on behalf of the people that even if the trial court erred in excluding this juror, as he did not sit, the ruling is one to which an exception did not lie. This contention is founded on a misconstruction of the second subdivision of section 455 of the Code of Criminal Procedure, which permits an exception to be taken “in admitting or rejecting testimony on the trial of a challenge for actual bias, to any juror who participated in the verdict, or in allowing or disallowing such challenge. ” This subdivision is construed by the counsel for the people as if the words “who participated in the verdict” followed instead of preceded the last clause, thereby limiting the right of exemption in all cases to rulings as to jurors who participated in the verdict. This construction is manifestly erroneous. The last clause permits an exception as well when the challenge is allowed as when it is disallowed, or in other words, when the challenge is sustained, as when it is overruled. If the challenge is sustained the juror necessarily is excluded and does not participate in the verdict, but an exception is expressly given in that case as in the other.

Construing both clauses in the subdivision together, it does not permit an exception to a ruling in admitting or rejecting testimony on the trial of a challenge, except where the challenge is overruled and the juror participates in the verdict, but does permit an exception to an erroneous rejection of a juror on the facts appearing in the case. In other words, if the juror on the facts proved was a competent and legal juror, an exception lies to his rejection. It is further insisted that admitting that an exception lies, it is not re viewable on appeal, for the reason that section 517, authorizing an appeal from a judgment of conviction, provides that upon the appeal “ any decision of the court in an intermediate order or proceeding forming part of the judgment-roll, as prescribed in section 485, may be reviewed,” and that by section 485, it is provided that the judgment-roll shall contain among other things “a copy of the minutes of a challenge to a juror participating in the verdict.”

The argument is that as only the proceedings on a challenge to a juror participating in the verdict are required to be incorporated with the judgment roll, the intention of the' statute was to confine the review to such cases only. But section 485 also provides that the judgment roll shall contain the “bill of exceptions, if there be one,” and all exceptions may be incorporated in the bill of exceptions. Sec. 456.

Under the former practice, the proceedings on challenges for principal cause were entered in the record, but it was otherwise as to proceedings on challenges to the polls for -favor, although questions of law arising on such challenges could be reviewed on bill of exceptions. Beardsley, J., in People v. Bodine, 1 Denio, supra.

Under section 485 of the Code, proceedings on challenges to jurors who participated in the verdict, must be incorporated in the judgment roll, and decisions thereon may be reviewed on exceptions as oí course, but if the defendant desires a review of his exceptions where the challenges were sustained, he must incorporate them in a biE of exceptions, to be settled and annexed to the roU. The legal right of a defendant may be violated as well by excluding competent jurors, as by admitting incompetent ones. He is entitled in all cases to a fair and impartial jury, but he is also entitled to insist that the jury shaH be selected according to methods established with a view to secure a just and impartial administration of the jury system. The law provides for the exclusion of incompetent jurors from the panel, and also of a limited number by peremptory challenge. There must be either legal cause or a peremptory cbaUenge to justify setting aside a juror properly drawn. The court cannot arbitrarily and without cause set aside a competent juror. Neither the court nor the parties can select the jury except in the way pointed out by the statute.

The intentional omission of the sheriff to summon one or more of the jurors drawn to serve at a court, is, by the Code, made a ground of challenge to the whole panel (sec. 362). This section recognizes the principle that the legal right of a defendant in the selection of a jury may be violated, although he may not be able to show that any of the jurors by whom, he was tried, were not fair or impartial. This court had occasion to consider this general subject in Hildreth v. City of Troy (101 N. Y., 234), and we adhere to the views then expressed. But while we are of opinion that the court in excluding the juror, Platt, committed a legal error, it is not necessary to decide that this error alone would require a reversal of the conviction. It may be that the erroneous exclusion of a single juror from the panel by mistake or inadvertence, where it could be fairly inferred that no injury resulted to the defendant, might be disregarded under section 542 of the Criminal Code. We do not pass upon this question. But we have deemed it proper to call attention to the ruling in the case of this juror, and to express our opinion as to the legal validity of the exception, so that the important principle that jurors legally drawn can only be excluded by the court for legal cause, may not be lost sight of.

We think errors were committed in the admission of evidence.

First. The prosecution was permitted, against the objection and exception of the defendant, to prove by the clerk of the court that Alderman Sayles, a member of the board of aldermen, and one of the thirteen who constituted the aEeged “ combine,” had been indicted for bribery and had not been brought to trial; and, also, that Keenan, Dempsey, De Lacy and Maloney, persons also implicated in the bribery, were at the time of the trial, and for some time previous thereto, had been absent from the jurisdiction of the court, and were residing in Canada. The proof of the latter fact preceded in order of time the proof as to the indictment against Alderman Sayles, and was objected to specifically on the ground that the fact that the persons mentioned had departed from the jurisdiction of the court was incompetent against the defendant. The district attorney openly avowed on the examination of the clerk, upon his offer to prove by him the specific reasons why Alderman Sayles had not been brought to trial, that the proof was offered on the same ground that he had offered the proof that had been admitted, of the present residence of Keenan and others, viz.: “as corroborative evidence of the story of Fulgraff and Duffy.”

It is perfectly plain from the record that the evidence in respect to the indictment of Alderman Sayles, and the absence of Keenan and others from the jurisdiction, was offered and received for the ptirpose indicated by the district attorney. It was clearly incompetent for this or any other purpose. Similar evidence was given on the trial of Sharp (107 N. Y., 464; 12 N. Y. State Rep., 217), and was held incompetent, although the avowed purpose for which it was then offered and received was to account for the persons named not being called as witnesses for the prosecution. Here it was offered and received upon the vital point of the corroboration of the accomplices. The admission of this evidence was in contravention of the settled rule that only the acts and declarations of a co-conspirator, done in furtherance and execution of the common design, are admissible against a conspirator on trial for the common offense, and that when the conspiracy is at an end, and the purposes of the conspiracy have been fully accomplished, or the conspiracy has been abandoned, no subsequent act or declaration of one of the conspirators is admissible against another (1 Green. Ev. § 111; 3 id., § 94; People v. Davis, 56 N. Y., 103; N. Y. Guaranty Co. v. Gleason, 78 id., 503. It is scarcely necessary to say that if the evidence was inadmissible on the main issue, it was equally so when offered in corroboration of the witnesses for the people. The error was not cured by what occurred on the summing up of the case to the jury, especially in view of the refusal of the court to charge upon the request of the defendant’s counsel “ that the jury had no right to consider the fact that certain of the aldermen alleged to have been in the supposed corrupt combination, are now out of the jurisdiction of the court.”

Second. The evidence that DeLacy, just before Fulgraff’s examination before the senate committe in 1886, had a consultation with the latter, and said to him, “Well, you don’t know any thing, and when you get before the committee, you tell them you don’t know any thing,” was also erroneously admitted. The fact that the witness Fulgraff consulted with DeLacy, and had an understanding with him as to how he should testify before the senate committee, could not legally affect the defendant. Yet the evidence tended, in the minds of the jury, to confirm the original association and concert testified to by the witness and to give credit to his story, although wholly incompetent for that purpose. The examination before the senate committee occurred two years after the conspiracy had. been accomplished. Fulgraff it is true, admitted that he swore falsely before the senate committee, but the defendant claimed that that testimony was true, and his testimony on the trial was false. The people were not entitled to show that his former testimony was given on consultation with DeLacy, one of the “combine,” and in pursuance of an arrangement to which the defendant was not a party.

There were many exceptions to the charge and to refusals to charge, which it is unnecessary to consider, as the errors pointed out require a reversal of the judgment. Some of these exceptions present serious questions, but we are not satisfied that the exceptions not considered are well founded, and we pass them without special examination.

For the reasons stated the judgment should be reversed and a new trial granted.

Earl, Danforth and Finch, JJ., concur; Ruger, Ch. J., concurs in result.

Peckham, J., dissents from that portion of the opinion treating of the order in which peremptory challenges should be made, on the ground that* the statute is directory only and not matter of exception upon which to grant a new trial. Also from that portion of the opinion treating of the rejection of a competent juror, as being error upon which an exception might be taken. He agrees upon the other matters discussed in the opinion.

Gray, J., dissents from the grounds of the conclusion in Judge Andrews’ opinion and votes for reversal and a new trial on the ground that it was error to charge the- jury that evidence of good character of itself did not tend to prove that a man is not guilty of an offense. This error was not cured by anything in the rest of the charge, and being substantial in its nature, the defendant is entitled to a new trial.  