People v. Reagle

By the Court, Talcott, J. The question principally argued before us was as to the validity of the special plea interposed pius darrein continuance, and which was overruled upon the demurrer of the people. It does not appear that any judgment in form was pronounced upon the demurrer, but the return states that the' demurrer was sustained by the court; and it appears that-the cause then proceeded to trial upon’ the plea of not guilty. The decision overruling the demurrer was treated as a judgment respondeas ouster, and such would have been the record, if one had been made. But the defendant, after the demurrer was overruled, went to trial upon the plea of not guilty, without objection. This was availing himself of the leave to answer over. There are two reasons why the correctness of the decision upon the demurrer is not legitimately before us. The certiorari in this case was issued under the provisions of the ¡Revised Statutes, after trial, and before judgment. The office of the writ, in such .cases, is only to bring up the' indictment, the proceedings on the trial, and any bill of exceptions that may have been taken ; and it presents for — 543 — review only the questions arising on the indictment and bill of exceptions. (See 2 R. S. 736, § 20; 741, §§ 23-25.) It is true, the return contains a statement that the defendant excepted to the decision sustaining the demurrer. An exception does not lie to such a decision, and is available for no purpose. Exceptions can be taken only on the trial, and to the rulings of the court as to the admission or rejection of evidence, or upon other questions presented on the trial before a jury in criminal cases, and not in any case to the judgment or order of the court upon a demurrer. The remedy for an erroneous decision upon a demurrer is, in civil cases, by appeal; and in criminal cases, by a writ of error. Secondly, by availing himself of the right to answer over, the defendant waived his former plea, so that the question of its validity could not be reached, even on a writ of error. In such a case, no notice is taken upon the record, of the pleading demurred to, but only the new pleading appears there. (Graham’s Prac. 612.) The issue of law is withdrawn from the record. As was said by the court in Jones v. Thompson, (6 Hill, 621,) “by amending and pleading the general issue, he admitted the correctness of the judgment upon the demurrer. Had he intended to rely on any error in that judgment, he should not have amended, but left the issue on the record.” But if, as seems to be supposed by the counsel on both sides, the propriety of the decision overruling the demurrer is presented by the certiorari and return in this case, we are obliged to say that we think the court of oyer and terminer committed no error in sustaining the demurrer to that plea. The plea relies upon the fact that on the former trial of the prisoner on this indictment, after the jury had been out for several hours, they were called into court by the presiding justice, who, after having ascertained by inquiry of them, that the jury had not agreed, and that there was no probability of their agreement, dis — 544 — charged them, in the absence of the justices of the sessions, and without the knowledge or consent of the prisoner, and they thereupon separated. It is claimed that the presiding justice had no authority to discharge the jury in the absence of his associates, whose presence is necessary to constitute a court of oyer and terminer; and such seems to be the law. The only thing which the presiding judge is authorized to do, in the absence of his associates, touching the business of the oyer and terminer, seems to be to take recognizances and bail. The case then stands thus: the jury, after the cause was tried and submitted to them, separated without authority, and without having agreed upon any verdict. We think this constitutes no bar to another trial of the indictment. To hold otherwise, would place it in the power of a single juror, by absconding and separating himself from the rest of the jury, to create a perfect protection to a criminal against the legal consequences of the most flagrant and clearly proven crime. The effect of modern decisions is, that irregularities whereby a lawful verdict is prevented, produce a mistrial, which is no bar to a new trial. In the leading case of The People v. Goodwin, (18 John. 187,) Spencer, J., in delivering the opinion, says: “ In a legal sense, therefore, a defendant is not once put in jeopardy until the verdict of the jury is rendered for or against him.” An exception has been made to this rule by later decisions, in the case of the withdrawal of a juror on account of the inability of the people to proceed with the trial after the empanneling of a jury, owing to the absence of witnesses. It is held that the people have no right to withdraw a juror, in a criminal case, under such circumstances ; and that the prisoner has a right to have a jury charged with his case. In The People v. McKay, (18 John. 212,) a new trial was ordered where there had been a trial and conviction, but — 545 — the proceedings were defective for want of a seal to the venire; and Spencer, J., delivering the opinion, refers to a case which occurred in Ontario county in 1814, where a woman was tried and convicted of murder, but the jury had separated after agreeing on a verdict, and before coming into court, and a new trial was ordered. In Cancemi’s ease, (18 N. Y. 128,) where a juror was withdrawn by the consent of the people and the prisoner, and the trial proceeded with eleven jurors, resulting in a conviction for murder, a new trial was ordered. In the case of The People v. Shepherd, (25 N. Y. 406,) it is said that “ by the common law a new trial could be granted in a case of felony, when there had been a mistrial, relating to the regularity of the organization of the court, or the empanneling of the jury, or, perhaps, conduct of the jury.” The case at bar, however, does not rest upon the mere question of the effect of unauthorized separation of the jury, without having rendered, or agreed upon, a verdict, nothing more having occurred. It is averred in effect in the plea of the defendant, that the jurors in this case attended in the said court of oyer and terminer, on the morning following their discharge, and were thereupon discharged by the court. It is conceded, at this day, that the court may discharge a jury in case of necessity, in a criminal ease, without furnishing a bar to a new trial. That the court, in the exercise of its discretion, is to judge of the necessity and propriety of the discharge, provided there be any facts on which such discretion may be exercised. It has repeatedly been held that a jury, having failed to agree, may be thus discharged. It would not, we suppose, be doubted that other causes—such’as the sickness of a juror or member of the court, or of the prisoner— would warrant the discharge of a jury before verdict, in a criminal case. So, no doubt, there are many other cases in which such discharge would be proper. We think this — 546 — case presents such an instance. The jury had separated without having been legally discharged, after the cause was committed to them, and before having rendered or agreed upon a verdict. Any verdict in the case, to be afterwards rendered by that jury, would doubtless have been invalid, and set " aside. Here, then, was a necessity for the exercise of the power of the court, in its discretion, and in furtherance of justice, to discharge the jury. That power is conceded to have been exercised by a competent court. We think such discharge constituted no bar to a new trial of the prisoner. Two questions have bee,n presented to us arising on the bill of exceptions. One as to the admission of certain testimony of Barbara Bowers, and the other upon the refusal to permit the wife of the prisoner to be sworn as a witness in his behalf. The prisoner was indicted for arson, in setting fire to a dwelling-house inhabited by one George Beckerich and his family. Beckerich and his wife had both testified that, simultaneously with the discovery of the fire, they, through an open bedroom window, saw the prisoner running away from the house, and that Beckerich, at the time, spoke to the prisoner, to the effect that it was useless for him to run away, and that he was recognized. This testimony was received without objection. The people afterwards called Barbara Bowers as a witness. She was staying at the house in question when the fire occurred, and was in the bedroom spoken of, at the time of the discovery of the prisoner through the window. Amongst other things, she was asked, by the district attorney, “What did you hear Beckerich say, in the bedroom, if anything?” The counsel for the prisoner thereupon objected to any evidence as to what Beckerich said, not in the presence of the prisoner. The objection was overruled, and exception taken. The question was, in the abstract, altogether too broad, and plainly liable in form to the objection interposed by the prisoner’s counsel. — 547 — But it was probably intended by the district attorney, and understood by the court, as calling only for what was said by Beckerich to the prisoner. At all events, the only answer elicited by it was a repetition of what Beckerich had said to the prisoner—“ I see you John Beagle.” This did not purport to be ,a declaration in the absence of the prisoner, but something said to the prisoner, who, according to the positive testimony of the two previous witnesses, was within hearing" at the time. So that, although the question in itself was improper, it is apparent that the prisoner has suffered no injury by it, as the only testimony elicited by it was competent, and the same as had been given without objection by the two previous witnesses. The exception is therefore immaterial. [Fourth Department, General Term, at Syracuse, November 13, 1871, The rejection of the prisoner’s wife as a witness was correct. By the common law, the husband and wife cannot be witnesses for each other. The provisions of the Code of Procedure do not apply to proceedings under the criminal law. The act of 1867, (ch. 867,) “to enable the husband and wife or either of them to be a' witness for or against the other,” &c., expressly declares that it shall not apply to criminal cases. The act of 1869, (ch. 678,) allowing persons charged with crime to be witnesses in their own behalf, relates only to the party charged with crime. The proceedings must therefore be remitted to the oyer and terminer of Erie county, with directions to that court to proceed and render judgment in the case; and the defendant ordered to appear in the next court of oyer and terminer holden in and for the county of Erie, to perform the condition of his recognizance. Mulllin, P. J., and Johnson and Talcott, Justices.]