
    The People of the State of New York, Respondent, v. Frank P. Elliott, Appellant.
    
      Peremptory challenge to the eleventh juror, after the twelve have been accepted, but before they are sworn— the testimony on a former trial, of a witness since deceased,, may be read on a retrial in a criminal ease.
    
    Where, after twelve jurors have been accepted by both parties and before any of the jurors are sworn, or either side has exercised the right to take a peremptory challenge,- the district attorney asks leave to interpose a peremptory challenge to the eleventh juror, the granting of such leave by the court over the objection of the defendant, who does not state the ground of his objection, does not present reversible error.
    Section 830 of the Code of Civil Procedure, providing for the admission upon a retrial of- the testimony of a deceased witness, who was examined at the first trial, is applicable to criminal actions.
    Smith, J., dissented.
    
      Appeal by the defendant, Frank P. Elliott, .from a judgment of the County Court of Chenango county in favor of the plaintiff, rendered on the 8th day of March, 1901, convicting him of the crime of rape in the second degree.
    This is the second trial and the second conviction of the defendant.
    .John P. Wheeler, for the appellant.
    
      Wordsworth B. Matterson and Eugene Clinton, for the respondent.
   Kellogg, J.:

This appeal is taken from a conviction of the crime of rape in the second degree. The errors charged by the appellant are :

First. The allowance by the court of a peremptory challenge of a juror by the People after the jurors had been accepted, but before they were sworn.

Second. A failure of the court to charge the jury in the exact language of a request.

Third. The admission of the evidence of a deceased witness given upon the first trial.

As to the peremptory challenge which was allowed to the district attorney, the record does not disclose whether the strict method laid down b.y the Criminal Code had been pursued in the selection of jurors. It does not show as in the case of People v. McQuade (110 N. Y. 284) that at any time the counsel for the defendant had insisted that the Code provision should be strictly pursued, viz. :

Challenges to an individual juror must be taken first by the People and then by the defendant ” (Code Grim. Proc. § 385), and the trial court in that case held: “ That either side had a right to interpose a peremptory challenge up to.the very moment the jury were sworn,” and, acting pursuant to such ruling, repeatedly permitted the district attorney to challenge jurors peremptorily after defendant, had exercised his right to so challenge, and «such rulings of the trial court were all made over the strenuous objection of the defendant. The Court of Appeals held that this was a clear error, ignoring the plain provisions of the statute. If it can be said that the error committed by the trial court in the

MoQuade case was committed on this trial, it must be regarded as fatal here as there. But every intendment and legal presumption which the facts appearing in the record and the absence of facts will permit, must be against such a fatal error. It appears from the record before us that one Frederick Scott was duly summoned, examined and accepted by the district attorney and the defendant as the eleventh juror.” Then one other juror was examined and accepted as the twelfth juror; and before any of the jurors were sworn, and, so far as it appears, before either side had exercised the right of any peremptory challenge, the district attorney stated to the court that since Juror Scott had been accepted something had come to his knowledge, which, at the time of acceptance, he did not know, and asked leave to interpose a peremptory challenge. “ To this the defendant’s counsel objected, which objection was overruled by the court, and an exception duly taken.”' This is all that the record presents to us. Nowhere is it stated what was the ground of the objection. Whether the ground was that it was in violation of the statutory provision that “ Challenges to &n individual juror must be taken first by the People and then by the defendant” or not does not appear. Nor do we learn from the record what was the method pursued in the matter of challenges as to any other proposed juror; or whether the ground was that the People had already exhausted its peremptory challenges, or whether at any time the right to challenge peremptorily had been exercised .by either party. . It may be that such right had been reserved by both parties to be exercised in the discretion of the court at any time before jurors were sworn, as it lawfully might have" been without violating any statutory provision if that had been the arrangement between the parties or the practice adopted as to other jurors without dissent. The ground of the objection was not disclosed. It appears to have been withheld from the attention of the court. It does appear that the usual practice of swearing in each juror as . he was accepted by both parties was not followed.' And the fact that the oath was not administered in that manner implies that each party had reserved some right to be exercised later on before they were sworn. There is no statute limiting the right to challenge at any time until after jurors are sworn. 0 If either party desires to stand upon the order in which challenges shall be made it should be so indicated to the court. We cannot presume when each juror is not sworn when accepted that the statutory order in which challenges were in any given case exercised was insisted upon by defendant.

.If the defendant .had stated the grounds of his objection the district, attorney might in this case have applied to the court to exercise its discretion and have had the juror excused as the Code provides may be done' even after jurors are sworn. It was said respecting objections by Enron, J., in People v. Hughes (137 N. Y. 37) in a like case, “ To hold otherwise would be to stray from the uniform rule that an objection must be sufficient to fairly call the attention of the court to the precise point to be decided, must be specific.”

. I think, therefore, that no error was committed by the learned trial court in allowing the challenge.

■As to the second alleged error of the trial court in its charge on the subject of weight to be given to good character, there' does not seem to have been error in this respect. When this case was in the Court of Appeals (People v. Elliott, 163 17. Y. 11) that court held that “ defendant was entitled to have the jury distinctly instructed that good character will sometimes of itself create .a doubt when without it none would exist.” I think- this rule was practically complied with in charging the three requests of the defendant. Taken together, I do not see_ how the jury could have failed to apprehend the court aS meaning anything short of the proposition laid down by the Court of Appeals.

As to the third alleged error, that of the admission of the testimony of Dr. Brooks, it appears that Dr. Brooks, a witness upon the first trial, was deceased at the time of this trial, and his former testimony was given to the jury. I think in such a case section 830 of the Code of Civil Procedure is sufficient authority for the admission of such testimony. This section covers all “ actions.” It is not confined to “ civil actions.” Sections 3333, 3335 and 3336 of the Code of Civil Procedure define what is meant by action ” in section 830 and clearly include criminal actions.

I think the judgment of conviction should be affirmed.

All concurred, except Smith, J., dissenting in an opinion; Parker, P. J., concurred in result.

Smith, J. (dissenting):

After the eleventh juror was accepted by both parties, the district attorney was allowed to interpose a peremptory challenge without stating any cause whatever therefor. If the defendant has a legal right to require the People to interpose their challenges before he challenges or accepts, as seems to be held in People v. McQuade (110 N. Y. 284), I cannot see why that right has not been here violated. I read in the Code of Criminal Procedure no authority, after the acceptance of a juror both by the district attorney and the defendant, for any challenge except for good cause. The request of the district attorney was to interpose a peremptory challenge. This request was granted against the protest and objection of the defendant.

ISTor should the defendant be deprived of his exception because his objection was not specific. The court was in no way misled. , The request was for liberty to interpose a peremptory challenge. Howsoever specific the defendant might have been in this objection, the district attorney could not have altered his situation in any way so as to authorize the granting of that request. In People v. Hughes (187 N. Y. 30) the objection itself misled the court by conceding that the right to excuse the juror at the time it was asked was one in the discretion of the court. As, however, the objection interposed has in no way misled the court, and as, if made specific, it could not have been obviated by any facts that the district attorney could prove, the court erred in overruling the defendant’s objection.

Judgment of conviction, afiirmed.  