The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-02-14

roo Rlad 20 DO relieved from. He had defeated
requested the Court to charge that the retenveness
OF his memory and his suspicious answers were TO
District Attorney GARvIN claimed that the Juror
attended under the cOmpulslon OF summons; that
MS answers were natural and proper and sh owed
there was nothing on which the Court could charge
The trlers.
In somewhat more elaborate charge than usual.
The triers found him competent.
COUNsEL-We challenge peremptorily.
The DISTRICT ATTORNEY objected; they had no
nght, and the Court was or the same opinion.
MI. GERRY read the statute on the formation OF
petit Juries, claiming that under that act they had
at least two peremptory challenges. The case Of
Freeman, which decided they had no right on such
a trial TO a peremptory challenge, was decided
three months before the passage OF tie acts OF is47
Under winch he claimed the right In 1850 this
question mad been discussed, and four t9dges mad
agreed that the act OF 1871 conferred in all criminal
trials the same right OF peremptory challenge which
was conferred IN civil suts-viz to challenge per-
The COURT said IL was inclined to the belief that
no peremptory challenges were allowed In trial or
this kina.
Prisoners counsel proceeded to argue the ques-
tion claiming that The third section OF the action OF
lS47 Kept alive the zenith section OF the Old law.
Ihat tenth section gave the same rights In criminal
as IN civil trials. Al the time OF Freemans case
there were no civil challenges, but the revised
statutes were prospective In their operation, and,
when perempt0ry challenges were allowed by the
act oil Is47 the provision became Incorporated INTO
the Old act and the old must be interpreted by
the new act The two acts were I'm p0rt ndtef'td,
and must be construed as though passed at the
same Time and this mas been decided by the
Supreme Court. .saiat s.-..S.sss,sst Il sr-
District Attorney GARvIN replied-First that TINS
Was not clv action; second that 1t was not tral
involving the punishment OF the prisoner In State
Prison or BY death 1t was mere preliminary trai
as ~ aG CONSTITUTION OF the Grand jury me statute
1i6tcd by counsel was directly before the court III
Freemans case; IL WAS apQteQ y their opinions any
they sOleinny decided 1t did not EerWIt peIepptory
challenges preliminary trial. The act OF 1877 ulo
not ntion this Kind OF preliminary trial ana now
1t could apply. 1t gave right OF TWO peremptoly
challenges trials OF issues OF TACT joined In civil
action. Was tins civil action Certainly not.
RULING OF THE COURT.
Judge CardOzO held tha:, before the act OF lS47
the prisoner had no right to peremptOry challenges
except on the plea OF not guilty. He felt strongly
inclined to the view That under the act OF lS47 the
same rule continued, but as some OF The passages
quoted from the case IN ninth Barbour seemed to
apply TO the present question, he should not N MS
preliminary matter hazard the trial on his indi.
Vidua opinion, and would therefore allow the prls-
Oner TWO peremptory challenges.
Mr. Carter, VINO had been all that time awaiting
the result OF the discussion on him, was therefore
ordered TO stand aside, and the Court took recess
for twenty minutes.
After the recess Jacob Sharp was the first juror
called, but having he stated, decided bias, ne
was rejected.
ISAAC 8. COHEN, JUROR NO. IL.
Isaac y. COnen was the next, and had no bias
whatever; had read about the homicide, but 1t had
made no impression on his mind. He was taken as
the twelfth Juror, ana the Court, alter caution1ng
the jurors against discussing or talking about the
case, adjourned the case till this morning.