The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-01-25
The Case OF Cancemi, Convicted OF the Mar
der Of Policeman AndersOn-ImPortanf
Opinion on the Qualification Of Jurors, and
WelGht Of Coed Character.
COURT OF APPEALS, ALBANY.

Oer OF k'Ouceman AndorSOn-AmpOrthht
Opinion on the Qualification Of Jurors, and
Weight OF Good Character.
COURT OF APPEALS, ALBANY.
Michael Cdncemi plaintiff, in error The People de
feTdants in 1rorThe following is the opinion Of the
Court delivered by Judge Strong, in granting new trial
to Cancem:--
By the Court-Stropg Justice Is stated in the bill OF
exceptions brought this Court by the writ Of
that Alexander Kyle one of the jurors sworn, and who
sat as such upon tho trial OF the Indictment on being
called as juror was challenged for principal cause, and
being examined under OATH testified his direct exam
patton that he had formed opinion and expressed H. ana
on bus cross examination that he bad no liked
opinion-nene which could not be removed by the
evidence The Court hereupon overrued the challenge,
on e ground that did not appear that the juror hao
liked ant absolute OPINION AMI the defendant excepted
crtciam was suggested the argument by the coun
sci Tor the people that was uncertain whether the OPT
Mon spoken OF related 10 the question OF the deendans
quit IN respect to the charge in the Indictment but al
though not 80 expressed III direct terms, 10 manifest
that aid So aud understood at the trial The de-
fencant was to be tried that charge the Indifference
81 the juror between the people and the defendant was
the pomt OF inquiry the challenge, his opinion affecting
TINS indincrence only could be inquired Of and he
spoke OF an opinion which might be changed by the evil
sence on the II a from which it is apparent that he re-
TERED TO an opinion the main issue ana like under
standing by the Court appears from the given for
It's decision on the challenge that the proof did not the
view OF the Court, show that the opinion fixed and
absolute not that if the opinion had been proved
be OF tina! cha! would not have been dsquaca
ton The testimony the juror the challenge docs
clearly disclose the precise state OF his mind IN relation
to the case, but on the contrary, is ambiguous and
susceptible of different constructions That portion of i
eicted on bis direct examination that he had formed and
expressed an opinion, standing alone would have called
for his rejection The residue gwen his xamna
ton, that he bad fixed opinion, which could not
be removed by the evidence may be interpreted qua
yipg the previous statement and TO mean that he had
only hypothetical impression not affecting his indfer
eDce rs juror. II may, the other hand, be inter
preted 10 import that the opinion which he had formed
and expressed not fixed that 1t might not be
controlled by the evidence regarding latter branch
z
int. nded by saying that he had no fixed opinion; in
which view the ordinary force of his testimony that he
had formed and expressed opinion in the case would
not be impaired. This testimony should DE construed
with liberalny to the defendant, in the humane spirit
administration. The right secured by Law, to a fair
and impartial jury, with minds open to re
ceive ana weigh the eviaence and balanced
porpce and should be carefully guarded by the courts
especially so in cases involving human life. In our
opinion the latter inter probation above stated should pre-
vail and upon that construction the juror clearly dis
qualified His mind was preoccupsed With an opinion
upon the issue to be tried which il would require evi
dence 10 remove and that upon principle and by all the
cases incspaciated him for juror The testimony of
the juror in the challenge TO him for favor which
subsequently taken, cannot be considered upon the que
ton whether the challenge for principal cause proper
y decided The trial Of the latter challenge for the
Court Alone aud 10 be decided upon the evidence
taken ty the Court tina, challenge only The testimony
upon the challenge for favor addressed 10 the riers
sppc nted TO try that chsenge to whom alone belonged
20 pass upon II and decide the challenge Much less
the finding of the triers the challenge for favor.
that the juror Indifferent, cure the error in
the decision Of the challenge for principal
Apoer question case upon the charge OF
jury IN relation to the evidence given by the defendant OF
his previous good character. A large number OF wit
had testified to the general good character OF the
defendant for peace and due,ness, honesty and industry
and that II bad been unexceptopable from his youth up
wards In respect TO this evidence, and IN connection
with many just observations TO the importance and
effect Of proof OF good character by defendant crmi
cases, the Justice stated TO the jury that when the
question OF great and orimnaty evil
dence Of good character and OF mans habital CONDUCT
under common circumstances, must be considered far in
feIo TO what Is In Instances OF accusations OF lower
grade but still, with regard 10 the higher crimes,
testimony OF good character though of less avail,
competent similar distinction the weight due
such evidence between charges OF high crimes and
charges Of crimes OF the lower grades was taken aud
sented TO the jury in the case OF The Commonwealth VS.
Webster (5 Cushing 324), which very peculiar
CASE which evidences Of character may have been
titled to but little consideration but I do not
find the doctrine advanced in any other The princ
pie upon which good character may be proved H. that
affords presumption against the commission OF crime
general rule-as proved by common observation and
perience-tbst person who has uniformly pursued
honest and upright course OF conduct will depart from
and do inconsistent with H. Such person may
be overcome with temptation and fall into crime, and
cases Of kind occur but they exceptions
the general rule otherwise The influence Of this pre-
sumption from character will necessarily vary according
TO the varying circumstances Of different cases II must
be slight when the accusation OF crime supported by
the direct and positive testimony OF credible Witnesses
and will seldom avail to control the mind In where
the testimony though crcumsantial il reliable, strong
nearly balanced but slightly preponderang against the
defendant the prcsumpnon from proof OF good character
is entitled 10 great weight, and VIII be often suf
fcient to turn the scale and produce acquiltal.
unable to perceive why this presumption may not,
should be general rule, ascon,rollng in
Of high crimes 10 those OF smalg ones In of
murder arson robbery any other great offence where
/ Is apparent that must have been planned and
mtied with great deberstioo and the evidence against
the accused uncertain why should not proof OF good
character influence the judgment powerfully o. In any
other cases can readily that IN Of great crimes
evidently perpetraed with but little II any forcthought,
under the influence OF some sudden and powerful motive,
such proof will be comparatively weak, but will be 50
In reference 10 any other crime with similar circum
stances The attending circumstances must think, do.
tcrmnc the degree Of orco which evidence OF good cha
should have; IA not IN ordinary affected by
the grade OF the offence. Formerly such evidence
admissible In capital cares only but IL will be recev
cd IN criminal cases generally q McNally's Evidence,
$40, 323 Mss r. 3i7 Is Alabama 100; Starke, a03;
Bennett * HUBS Notes In leading cases, 159,
doctrine Of the charge which has been considered,
was stated 10 the jury in such manner AZ 10 bef not
In effect instruction controlling the weight Of the evi
depoc-taicuiated to misead the jury a. TO the weight
which the evidence should receive and therefore affords
good ground, under the act Of 1855 Session laws, chap
3S7 rage 63 for trial Section three Of that act
after providing that every conviction for capital offence,
may be brought before the supreme Court and Court
Of Appeals by writ OF error with stay Of proceeding
a matter Of right, declared that the sad Appellate
Court may ortsr new trial " Il shall be satisfied tina,
the verdict against the prisoner against the weight OF
evidence against law that justice requires new
trial. whether any exception shall have been taken or no,
in the court below We think competent and pro.
per the supreme Court general term, TO pronounce
judgment 10 The upon the return Of the record With
the posted record Of the proceedings the circuit.
and that the present judicial system agree. win ,ne
the need not be considered The Judgment must be
reversed and new trial be directed.
Particulars Of the Terrific Tornado In New
DeIe