V

ABBOTT'S NEW CASES.

GREENFIELD v. PEOPLE.

N. Y. Court of Appeals; October, 1878.

[Reversing 13 Hun, 242.]

COMPETENCY OF JURORS.-CHALLENGES FOR PRINCIPAL CAUSE AND FOR FAVOR.

One who from the reading of even an incomplete report of the criminatory testimony formally taken under oath against the prisoner, has formed an opinion or impression of his guilt, is not a competent juror, however strong his belief and purpose that he will decide the case on the evidence to be adduced before him as a juror, and will give an impartial verdict uninfluenced by that impression.* The distinction between challenge for principal cause and that for favor has not been removed by the acts of 1872 and 1873 (1 L. 1872,. p. 1133, c. 475 ;† L. 1873, p. 681, c. 4271).

*See note on the Proper Practice in Impanneling Jurors, at the end of this case.

+ Section 1 is, "The previous formation or expression of an opinion or impression in reference to the circumstances upon which any criminal action at law is based, or in reference to the guilt or innocence of the prisoner, or a present opinion or impression in reference thereto, shall not be a sufficient ground of challenge for principal cause to any person who is otherwise legally qualified to serve as a juror upon the trial of such action; provided, the person proposed as a juror who may have formed or expressed or has such opinion or impression as aforesaid shall declare on oath that he verily believes that he can render an impartial verdict according to the evidence submitted to the jury on such trial, and that such previously formed opinion or impression will not bias or influence his verdict, and provided the court shall be satisfied that the person so proposed as a juror does not entertain such a present opinion as would influence his verdict as a juror.”. Section 1 is, "All challenges of jurors, both in civil and criminal

VOL. VI.-1

Greenfield v. People.

Although the juror's answers on challenge for favor are not to be referred to in support of a challenge for principal cause; yet where both in succession are tried by the court, under the statute his answers on challenge for principal cause may be referred to in support of the subsequent challenge to the favor.

And the appellate court may refer to them on an exception to the determination of the challenge.

Although a mere impression, as distinguished from an opinion, will not sustain a challenge' for principal cause; yet the fact that the juror uses the word "impression," rather than "opinion," is not conclusive. It is enough if there has been an effect produced upon the mind, whatever the juror may call it, which is so firmly lodged as to need a new-coming force to dislodge it.

Under the acts of 1872 and 1873 (above cited) the question of fact, whether, upon the evidence taken on the trial of a challenge in a criminal case, the juror had such a bias as not to stand indifferent, may be reviewed in the court of appeals, on exception.

The case of Thomas v. People, 67 N. Y. 218, distinguished and limited. And Phelps v. People, 6 Hun, 421, partly overruled.

Writ of error.

The plaintiff in error, Nathan O. Greenfield, was indicted for murder, and tried at oyer and terminer of Oswego county, but the jury failed to agree.

Upon the second trial, two of the jurors were challenged by the counsel for the prisoner: one of them for principal cause and as having formed and expressed an opinion; and both for favor and as not being indifferent and impartial.

One of them, upcn trial of the challenge by the court pursuant to L. 1873, p. 681, c. 427, stated that he had read in a newspaper a part of the account of the former trial, which gave evidence for the prosecution; had heard others talk about that trial a good deal; had never expressed an opinion, but had an im

cases, shall be tried and determined by the court only. Either party may except to such determination, and, upon a writ of error or certiorari, the court may review any such decision the same as other questions arising upon the trial."

Greenfield v. People.

pression as to what he believed, which impression had led him to an opinion as to his guilt, so that he had at the time of the impanneling of the jury such an impression, opinion or belief as to the guilt of the plaintiff in error, that it would take evidence to remove. But he believed that he could then render a fair and impartial verdict upon the evidence, for he thought that his previously formed opinion or impression would not bias or influence his verdict, and that he could take the case and decide it fairly according to the testimony, without reference at all to any opinion he might have had. He said, moreover, that his opinion or impression was formed on a supposition that the evidence which he had read was true, and that, if swornas a juror, he would enter upon the trial with an impression as to the guilt of the plaintiff in error, and that at that present time he had an opinion as to his guilt, and that he supposed that he had an opinion against him as to his character as a man, and that, after reading the aforesaid testimony, he had never had cause to change nor to doubt the truth of it.

The other juror, who was challenged for favor as not being impartial and indifferent, had also formed an impression as to the guilt of the prisoner from reading parts of the published testimony and from the talk of the people, which he thought he had expressed and still had; but he thought that he could remove it and would do it, and would be sure to; and that if he was sworn as a juror, he could render a verdict without being influenced by any impression or opinion that he had had, and that it would not bias or influence his verdict, and that he could render an impartial verdict according to the evidence, notwithstanding any impression or opinion he might have formed.

The challenges were overruled, the plaintiff in error excepted, and the jurors were sworn and acted upon the trial, which resulted in a conviction of murder in the

Greenfield v. People.

first degree. The plaintiff in error thereupon brought his writ of error to this court.

S. C. Huntington, for plaintiff in error.

J. J. Lamaree (District-Attorney Oswego county), for defendants in error.

PER CURIAM.-In the view which we take of this case, it will be sufficient, if we notice with any particularity the points of the plaintiff in error, based upon the overruling of his challenges to two of the persons who were sworn upon the panel of jurors by which he was tried and found guilty.

One of them was challenged for principal cause, and as having formed and expressed an opinion. Both were challenged for favor, and as not being indifferent and impartial.

There has always been a distinction between these two kinds of challenge, and there is yet, notwithstanding modern legislation on the subject. The challenge for principal cause asserts that there are facts, from which the law will say, that the person proposed to sit as a juror, is not indifferent between the parties. If it is seen that a certain state of facts does exist, the law does, ipso facto, declare that result. If one has expressed an opinion on the prisoner's guilt, it is a good ground of challenge for principal cause (People v. Vermilyea, 7 Cow. 108; People v. Allen, 43 N. Y. 28). Though he has not expressed an opinion, if he has formed one, upon reports and what he had read, which it would need testimony to remove, he was, by the old law as a rule of law, disqualified (People v. Mather, 4 Wend. 229); even though, if testimony should do away the circumstances on which the opinion was based, he would not believe the party guilty (Ib.; Cancemi v. People, 16 N. Y. 501).

It has been held, that what is said by one proposed, on his examination on a challenge for favor, may not