
    
      January, 1886.
    PEOPLE v. CARPENTER.
    Challenge—Charge.
    Comments by the trial judge on the testimony, so long as the judge leaves all the questions of fact to the jury and instructs them that they are the sole judges of matters of fact, are not the subject of legal exception.
    The existence of a prejudice or bias in the mind or opinion of a juror against any supposed or proposed defense, is not a legal basis for a challenge to the favor under the Code of Criminal Procedure.
    The qualifications of the juror relate to the condition of his mind at the time of his selection, not to a mental condition which may be produced by a subsequent or hypothetical event, e. g., the possible defense of insanity.
    The administering of the oath to each juror as he is found competent, is a lawful mode of swearing, and precludes a subsequent peremptory challenge to such juror.
    After each juror had been separately sworn, the subsequent swearing of the jury as a body, at the request of defendant, does not vacate such oath previously administered to such juror, and defendant’s absolute right to challenge peremptorily a juror previously sworn is not thereby revived.
    Appeal by John Carpenter, defendant, from a judgment of the Court of Oyer and Terminer of New York county, Hon. George C. Barrett, presiding, of July 3, 1885, convicting him of murder in the first degree.
    A previous conviction of the defendant for the same offense was reversed by the General Term (3 N. Y Grim. Bep. 92), and the present appeal is from a judgment of conviction upon a second trial.
    Upon the trial Freeman A. White, called as a juror, testified: “ Q. If the defense of insanity were interposed on behalf of the defendant on the trial of this cause, would you have any prejudice against that defense? A. Yes, sir. Defendant's Attorney: We challenge for cause: Juror: If I believed, upon the evidence, that a party was insane, and I was instructed by the court that an insane party is not responsible in law for his act, I would have no hesitation in finding him not guilty; my answer only implies that I believe the defense of insanity has been misused and abused, and I am not prejudiced against a person who is insane; and if it was demonstrated to me that the party was insane, I would treat him accordingly; I have a feeling that if the defense was resorted- By the Court : Q. Is your prejudice anything more than that? A. That is all. Q. It is a prejudice against sham defenses? • A. Yes, sir. By Defendants Attorney: I don’t think that that feeling would control or influence my judgment against the defense of insanity. Q, Could you go into that jury-box and divest yourself of all prejudice and all feeling against the defense of insanity, and join with your fellows in rendering a verdict according to the testimony submitted ? A. 2STo; I might construe that evidence more critically. Q, Then there would be a decided feeling against that defense of insanity? A. I don’t know as I could explain it any better to you than that? Q. Would you consider that testimony more critically? A. Yes. Q. Do I understand you to say that it is merely a feeling, and not a prejudice, against the defense of insanity that you entertain ? A. Yes, sir; it is probably more a feeling than that of prejudice ; it is a feeling that the defense of insanity is resorted to too often when not justified—that is, I would look critically and carefully into the evidence to see that it was justified. By the Court : Q. Do I understand you to say, that you could enter that jury-box without any feeling or without any bias or prejudice against the defense of insanity? A. Well, I hardly think I could say that; I should examine the evidence very critically, and consider it very critically, perhaps more where the defense is set up. Q. Then, you would have a feeling and bias against that defense? A. I have answered that question. District Attorney: This feeling or prejudice, whatever it may be, is against the abuse of this defense and not-against the defense itself, and it goes no further. Juror (to the Court): I don’t think I have any prejudice against a man who interposes it as a defense; it has no relation to an honest defense of insanity; merely sham defenses which give me a general feeling of suspicion and doubt about it By Defendants Attorney: Q. Could you enter that jury-box without prejudice, feeling or bias against the defense of insanity ? A. I don’t think I have a prejudice against that defense that-would influence my judgment in a case; I would examine, perhaps, more critically the evidence of it; well, I must say that-I would have a little bias against the defense; I think I could enter the jury-box without any prejudice. Defendants Attorney: We press our challenge. The Court : I am of the opinion that he is a perfectly competent juror; that he has really no prejudice which would render him an improper juror. Defendant excepts. By Defendants Attorney: Q. If it were disclosed on the trial of this case that this defendant had been tried and convicted of this charge- District Attorney: You have-submitted your challenge and it has been overruled. Defendants Attorney: I challenge this juror for cause, as to the question of insanity; I now desire to ask him as to whether, if it were disclosed on the trial of this case that this defendant had been tried and convicted of the charge at another time, whether that would prejudice or bias him against the defendant. The Court : The challenge has been overruled. Defendant excepts. The Clerk: John Carpenter, if you desire to challenge an individual juror, you must do so before the juror is sworn. Defendants Attorney: We object to the swearing of the jnrorson the ground that we have the right to exercise the right of peremptory challenge until the whole of the jury is sworn; in -other words, until the whole twelve have been selected. Overruled; defendant excepts. Defendants Attorney: We challenge the juror peremptorily.”
    
      James M. Lehmaier, called as a juror, was sworn and examined by the district attorney, and testified: I think I have formed an opinion as to the guilt or innocence of the accused from newspaper-reading at the time of the occurrence; I can’t remember having expressed that opinion in conversation with others; that -opinion remains with me at the present moment. Q. Notwithstanding what you have read, if accepted as a juror, can you so •divest your mind of the opinion as to receive the evidence, or con,sider it without any bias or prejudice against this prisoner ? A. I am sorry to say that I think I can; I have an opinion against ithe misuse of insanity. By Defendants Attorney: Q. At the time you read this occurrence in the newspapers, you formed a ■distinct and positive opinion? A. No, sir; I did not form : a distinct one, but one such as a man generally forms after reading ; whether positive or not I can’t say. Q. That opinion, of •course, formed .an impression in your mind ? A. I can only say such as is left by reading a newspaper item. Q. Would it require affirmative evidence to remove that opinion? A. I -can’t say. Q. Is there anything positive in your mind that will require an effort on our part to remove ? A. There is nothing positive in my mind. Q. Is there an impression ? A. I can’t .answer that more than I have before; if I should be selected on the jury, I would go by the evidence in the case. Q. Would you go into the jury-box with whatever opinion or impression you had formed at that time ? A. I believe so; nothing has occurred to remove that impression; I have no prejudice or bias .against the defense of insanity, except when misused, and I - can’t tell until I hear the evidence whether it is misused. Q. Would you go into the jury-box with a bias against that defense? A. I think I should. Defendant's Attorney: We challenge this juror for cause. The Court : I overrule the challenge. Defendant excepts. Defendants Attorney: We challenge him peremptorily.”
    After the twelfth juror was sworn and examined, defendant’s .■attorney said: “We now ask that the jury be swom as a body ■ to try this case. The Court : The clerk will swear the jury. Defendant's Attorney : We desire to challenge peremptorily Mr. William 0. Barclay, the first juror, before the jury is sworn. The Court: That is overruled. Defendant excepts. Mr. McDonald was thereupon sworn individually as a juror. Defendant's Attorney: Having already excepted, and repeating ■ our exception to the court’s overruling our peremptory challenge to the first juror, we now ask that the jury be swom as a body.” The court stated that the jury was already swom according to law, but if the prisoner desired the body to be collectively swom, he saw no objection to it, although it was, in his judgment, a work of supererogation. Thereupon the clerk swore • the twelve persons sitting in the jury-box, collectively as jurors, ■agreeably to the request of the defendant, and they constituted the jury on the trial thereon.
    In his charge to the jury the court spoke as follows as to insanity: “Now, gentlemen, is he responsible or is he not? that is the question. His defense is insanity. There are a great .many loose ideas about insanity. Like self-defense, there are ■ a. great many crude opinions m the community about it. There are those people who believe that if one man slap another in -the face, it quite justifies shooting or stabbing. I have often had to dissipate this view. Fortunately, in considering this question of insanity, we have nothing to do with the loose views of individuals, nor, indeed, have we anything to do with the metaphysical speculations of doctors and experts. There are people in this world who believe that every man is more or less unbalanced; that no man has a perfectly healthy and sound mind, and I fear there are those who are themselves so mentally unbalanced as to think that crime should only be punished when committed by a man of perfectly sound mind, gifted with absolute common sense, and free from crochets or mental peculiarities.
    “ But that is not the view of the law, nor should such dangerous ideas find their way into the jury-box. The statute is so ■plain that he who runs may read. Under the statute even those •who are insane may, under certain circumstances, commit crime and be punished for it It does not follow that, because a-, naan’s mind is weak he cannot commit crime. There are great minds and little minds; there are men of genius and men of plain, common sense: there are accomplished men, and there are ■ foolish, unwise and stupid men. But they can all commit crime within the law, if, when they do the deed, they know the nature and quality of the act they are doing—or if they know that the act is wrong. A person, says the statute, is not excused from criminal liability as an idiot, imbecile, lunatic or insane person, except upon proof that at the time of committing the alleged criminal act he was laboring under such a defect of reason as not to know the nature and quality of the act he was • doing, or not to know that the act was wrong. There are plenty of persons who are insane in a medical sense, and yet who go • about the streets perfectly harmless. On some one point they have a monomania, while on all other points they are clear- ■ minded and reasonable. It is only when you touch them in the -• direction where the monomania lies that you arouse the insane impulse. If, in a matter entirely foreign to the subject of their ■ monomania, and as to which they are perfectly sensible, clear-minded and reasonable, they commit crime, they are responsible. Were it otherwise there would be no safety in the community. The law for general protection has to lay down general rules. The question, therefore, is simply this—not whether this defendant's mind was that of a sane or of an insane man, in a - medical sense, but whether it was so far diseased that he was-incapable of understanding the nature and quality of his act, or - that it was wrong. If he did so understand, he is responsible. If, however, he did not know whether his act was right or - wrong, he is irresponsible. So, if he did not know the nature- and quality of his act, he is irresponsible. It is all in a narrow compass, though it is not always easy to ascertain whether a. man is responsible or irresponsible even under this clear definition.”
    
      C. Kneass and A. Pape, for defendant, appellant
    
      Randolph, B. Marline, district attorney (¿De Lancey NicoU,, assistant) for the people, respondents.
   Brady, J.

The defendant was charged with the murder of his wife, and was found by the jury to have killed her under ■circumstances warranting a conviction of murder in the first degree.

It appeared on the trial that some years before the killing he had intended or attempted a similar act and struck down a woman in a church in this. city whom he believed to be his wife, .for which offense he was sent to the State prison; and further, that while in the prison he had expressed his determination upon his liberation to kill his wife, which he did soon after his discharge. The facts and circumstances establish beyond all peradventure, therefore, deliberation, premeditation, and a brutal murder.

The appellant' complains of errors committed during the empanelling- of the jury which originated, as is claimed, in this way; Two jurors were interrogated as to the defense of insanity, namely, Francis A. White and James M. Lehmaier, and asked if that defense were interposed on behalf of the appellant on the trial, whether they would have any prejudice against it, and the result of the examination of each on that subject was substantially that they had a prejudice against that defense which would remain with them; but it may be said that notwithstanding this supposed bias, it is patent upon the whole examination that they felt that they would be guided and controlled by the evidence notwithstanding the impression mentioned. Assuming, however, that this was doubtful, the complaint made cannot avail the accused, as we shall see. The Code of Criminal Procedure provides, by section 376, for particular causes of challenges, which are of two kinds. First, for a bias which when its existence is ascertained, in judgment of law disqualifies the juror, and which is known in the Code as “ implied bias;” Secondly, for the existence of a state of mind on the part of the juror with reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot try it impartially and without prejudice to the substantial rights of the party challenging, and which is known as “ actual bias.” But it is declared that the previous expression or formation of an opinion as to the guilt or innocence of the defendant, or a present opinion or impression in reference to it, is not a sufficient ground of challenge for “ actual bias ” to any person otherwise legally qualified, if he declare on oath his belief that such opinion or impression will not influence his verdict and that he can render an impartial one according to the evidence, and the court is satisfied that he does not entertain such a present opinion or impression as would influence ■ his verdict By section 377, the grounds of challenge for implied bias are stated in eight subdivisions, for which grounds, it is declared, such challenge may be taken, and for no other. It is not necessaiy to state the grounds contained in these several subdivisions of the section mentioned. It is sufficient to say that they do not include any bias against any defense that might be interposed in answer to the crime charged. There is nothing in the provisions of section 376 which includes such, a bias. They relate to an existing state of facts and not to an. hypothesis, namely, the defense of insanity if inteiposed. The bias or prejudice which disqualifies the juror must, as already intimated, be of some existing fact His qualifications relate to the condition of his mind at the time of his selection and not to a condition of mind which may be produced by subsequent events. H his bias or prejudice against the defense of insanity is a good reason why he should be excused, then his bias or prejudice against the defense of alibi is an equally good reason.

The doctrine seems to be this, therefore, that the bias or prejudice relates to the offense of which the party stands charged, and not to any of the various defenses or collateral issues which may be interposed and created, and by which the accused may be relieved from responsibility. If the juror-stands indifferent between the people and the accused in reference to the crime charged, that is sufficient, particularly as we have seen by the provisions of the Code that even if he have an opinion as to the guilt or innocence of the accused, he is qualified under the statute, if he can say under oath that he believes he could render an impartial verdict People v. Casey, 2 MY. Orim. Rep. 171.; 96 K T. 115

The learned counsel for the appellant, who has displayed great zeal in behalf of the client, has cited no case furnishing a. precedent for this line of examination, and it is supposed none can be found In the case of the Commonwealth v. Porter (4 Gray, 423), it was decided that the accused was not entitled to ask a juror whether he had formed or expressed an opinion as to the credibility of a witness upon whose testimony it was expected the prosecution might rely to support the indictment. In the case of the Commonwealth v. Buzzell (16 Pick. 153), which was an indictment charging the accused with burning the Ursuline Convent, in Charlestown, the attorney-general, as-the prosecution was to be supported in part by the testimony of Roman Catholics, and as he apprehended that in consequence of there being much excitement in the public mind on the subject of the trial the persons returned as jurors might not-be impartial, suggested that as the jurors were sworn they be-asked whether they entertained the opinion that a Roman Catholic was not to be believed on his oath. The court ruled that the question should not be put

This subject was ably discussed by the present surrogate of' this county, then acting as the district attorney in the case of Templeton v. People, and his brief is to be found in the Cases of the General Term, 1875, voL 2, in the library of the Association of the Bar. He contended that the practical effect, of recognizing the claim to examination as to the defense of insanity would be an indefinite increase of the number of peremptory challenges permitted by law, and said among other things, that there was manifestly no power in a court to prevent counsel who had caused jurors to be discarded on account of their bias or prejudice against particular defences, from abandoning those defences as soon as he had secured twelve men to-his liking. And he suggested that the inquiry in reference to the qualifications of a juror must be, does the juror now stand indifferent as he stands unsworn? Hot will he stand indifferent in the event of a contingenc/ which may never occur.

It is intended, therefore, to state as a proposition of law applicable to this and kindred cases, that a juror cannot be inquired of in respect to his prejudice against any particular defense, whether that defense is of a character that can be summarized in one word or phrase, such as “ insanity,” “ alibi" or mistaken identity,” for example, or is of a more complex character, so that it can only be explained by a statement of the very facts and circumstances that are to be offered m evidence. The bias or prejudice must be one actually existing for or against the prisoner, and either personal in its character or springing from convictions or opinions as to the charge made against the pris- ■ oner, so controlling in its influence as to destroy a belief even that in the consideration of the case impartial justice cannot be • done by the juror. This seems to be doctrine which appeals at once to all the proprieties in the administration of criminal justice.

It' must be further observed that no juror has any right, and .should not be regarded as having any right to entertain any prejudice against any defense, whether of insanity or otherwise. It is his duty to consider impartially all the evidence submitted to the court of which he forms a constituent part, and if in the discharge of his duty as a juror, he permits a bias or prejudice against a particular defense to control him, he violates his oath, disobeying the law of the land, and perpetuating an outrage in the administration of justice. He would subject himself by such a course to indictment and to punishment, which he would richly deserve. Indeed it may be said with propriety that no juror should be excused, if the statute did not exist authorizing him from serving in a case involving capital punishment, simply because he had a prejudice against that penalty. He has nothing to do with the punishment. His province is to say whether the accused is guilty of the' crime charged as a matter of fact upon the evidence. The punishment is declared by the Legislature and pronounced by the court. He shall not be permitted to entertain any prejudice as a citizen of the State in which he is called upon to serve as a juror; he is bound by the laws which there prevail, and when he takes his seat in the jury-box he has no right whatever to interpose his private views against the law which he is bound to observe by every obligation which can bind men together.

The laws are not to succumb to the prejudices of men who are required to acquiesce in and to be governed by them. There is no doubt that they must be so required, for a violation of law is punishable sometimes lightly, sometimes with severity, and perhaps in the gradation of punishment frequently too lightly. If a man becomes a citizen of the State, it devolves upon him at once to yield his private conclusions about its laws, whenever placed in a position where he is called upon to perform a public duty; and if he does not, he assumes at once the attribute of an outlaw who stands arrayed against the rules prescribed by due authority for his government and control It is unnecessary, however, to pursue this subject further.. The conclusion arrived at is, that whether there was or was not a bias against the defense of insanity, was wholly immaterial.

The appellant also complains that he was not permitted to exercise the right of peremptory challenge after the jury were sworn. In regard to this, however, it appears that each juror after his examination, and the failure of the accused to challenge peremptorily, was sworn to try the issue between him and the people. On that subject section 371 of the Code of Criminal Procedure provides, that the court may in its discretion, for good cause, set aside a juror at any time before evidence is given in the action. The right of peremptory challenge continues, it is true, until the juror has actually been sworn. We so decided in this case when it was before us on a former appeal, and there seems to be no doubt that the rule declared by the section just referred to, prevailed before its passage. Tweed’s Case, 13 Abb. (N. S.) 371, n; People v. Damon, 13 Wend. 351.

There is nothing in this case to show that, in refusing to permit a peremptory challenge'to be taken after the juror was sworn, the discretion with which the court was invested was in any way abused, and the accused can take nothing by the objection stated.

Before the oath was administered to the last juror, the counsel for the accused asked that the jury be sworn as a body to try the accused, to which the court responded, “The clerk will swear the jury.” The defendant’s counsel then said, “ We desire to challenge peremptorily Mr. William 0. Barclay, the first juror, before the jury is sworn.” The court said, “ That is overruled,” and the defendant’s counsel excepted, whereupon the last juror was sworn. The defendant’s counsel then asked that the jurors be sworn as a body, to which the learned judge responded, that the jury was already sworn according to law, but if the prisoner desired the body to be sworn collectively, he saw no objection to it, although it was, in his judgment a work of supererogation. The clerk thereupon swore the twelve persons sitting in the jury-box according to the request of the counsel for the accused.

Upon these incidents the counsel for the accused insists that by ordering the jury to be sworn collectively as a body at one and the same time, the oath administered or taken by each of the jury individually was vacated, and the right of peremptory challenge attached as if none of the jurors had been sworn. This is very ingenious but extremely metaphysical. It seems to be destitute of merit, however, and particularly when the act of which the accused seeks to avail himself was one performed by his particular request through his counsel If the swearing of the jury, however, created such an extraordinary result as that claimed by the counsel for the accused, and he should be permitted thus to take advantage of his own wrong, nevertheless it would not avail him, for the reason that after the jury were sworn he neither interposed a peremptory challenge nor claimed to exercise any right to do so.

It is also contended on behalf of the accused that the verdict is against the weight of evidence. The defense was insanity. There was no pretense of any other, and the case presented facts and circumstances which left no other conclusion to be drawn than that a deliberate and brutal murder had been committed.

Some facts and circumstances were arrayed on behalf of the accused which it was supposed furnished evidence of a diseased mind, and several medical gentlemen were examined on his behalf, whose testimony tended to establish the existence of insanity at the time of the commission of the offense of which he stood charged. But these facts and circumstances were responded to by the evidence of witnesses who had known him, who liad seen him in and out of prison; by proof of his demeanor whilst confined in the state prison, extending over several years; and also by the testimony of medical gentlemen who had seen and watched him, and thus an issue was fairly and fully presented upon the defense thus interposed, which was decided against him.

It is urged, and perhaps with some reason, that the learned justice in presenting his views upon the defense of insanity, so expressed himself as to convey to the jury an impression of his personal prejudice against that defense, or at least such a view of it as rendered it necessary for them to examine with extreme caution and scrutiny every element of it presented on behalf of the accused, and thus suggesting a difference between that and any other defense. In the case of Sindram v. People (88 N. Y. 169), Justice Bapallo said: “ Comments upon the testimony, so long as the judge leaves all the questions of fact to the jury, and instructs them that they are the sole judges of matters of fact, are not the subject of legal exception. It is desirable that the court should refrain, as far as possible, from saying" anything to the jury which may influence them either way in passing upon controverted questions of fact, and perhaps comments on the evidence might be carried so far as to afford ground for assigning error. But in the present case, whenever its attention was called by the prisoner’s counsel to any part of the charge which he considered as an infringement upon the province of the jury, the court promptly and clearly withdrew the remarks objected to, and emphatically reminded the jury that they alone had the right to determine the facts.”

Bat the court held in that case, inasmuch as the observations complained of were promptly withdrawn, and the jury instructed emphatically that they alone had the right to determine the fact, the judgment should not be interfered with

The same features mark this case. Although the learned justice presiding would seem to have had very decided views, not only in regard to the defense of insanity, the ease with which it might be simulated, the comparatively small reliance to be placed upon individual testimony, and the fact that expert testimony had repeatedly been criticised and gravely, because generally speaking experts are employed just as advocates are—to support a theory, he left the whole question to the jury, expressing his admiration for the medical gentlemen examined on the part of the accused, who had rendered their services in the case without compensation.

It is impossible for us to say, however, that the verdict was against the weight of evidence, nor can we say that the charge of the learned judge was in antagonism to the established rules. For these reasons the accused can derive no benefit from the contention already considered.

We have examined this case with great care and attention, and find that no other exception was taken or presented for our consideration which would justify us in disturbing the verdict appealed from. We have not discovered in any of the propositions urged on the part of the accused, therefore, any reason why a new trial should be granted. The defense of insanity was rejected by the jury upon a conflict of evidence on the subject, and it was the only defense interposed, and indeed, as developed by the record, the only defense that could he interposed by which the accused could hope to be relieved from the consequences of the crime he committed, which was long meditated and most mercilessly executed.

The judgment must be affirmed.

Davis, P. J.

I concur in the opinion of my brother Beady in so far as its results depend upon the following propositions discussed so ably by him :

First. That there was no error in overruling the several challenges, because on the testimony of the challenged jurors the court properly held that no existing bias was shown that disqualified either of them to sit in the case.

Second. That the existence of a prejudice or bias in the mind or opinion of a juror against any supposed or proposed defense is not such a one as is a proper legal basis of a challenge to the favor. Inquiries on such subjects may properly be allowed or made of a juror, under control of the court, for the purpose of determining whether a peremptory challenge shall be interposed, but beyond that they, as shown by my brother Beady, are quite immaterial The Code of Criminal Procedure now regulates the subject of challenges for opinions held or expressed as to the guilt or innocence of the accused, and relieves the court from the absurdity of shutting out intelligent jurors, who, notwithstanding such opinions, declare on oath that they believe themselves capable of trying and deciding the case upon the evidence given before them, notwithstanding such opinion. It would be as proper, I think, to incapacitate a juror because he declared he had a prejudice against the crime charged in the indictment as against a defense that may be interposed to it.

Third. That the administering of the oath to each juror as he was found competent was a lawful mode of swearing the jury, and the oath thus taken by each precluded a subsequent peremptory challenge of him.

Fourth. That the re-swearing of the jury as a body, at the request of the defendant, did not alter his rights in respect of peremptory challenge.

These conclusions, of my brother Beady, dispose of all the material questions of the case, and justify his conclusion that the judgment should be affirmed, and upon them I concur in that conclusion.

Judgment affirmed. 
      
       See People v. Crowley, 4 N. Y. Crim. Rep. 26.
     
      
       Hon. Daniel G. Rollins.
     