The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-04-05
The Court Of Appeals Unanimously Affirm
the Decision Of the Lower Courts.
WHAT CONSTITUTES MURDER.
Legal Tcchnicalities and Absurd Interpretations
Of the Law Rebukcd.
The Question Of the Commissonership of
Jurors Virtually Settled.

ALBANY, April 4, 1874
The decision Of the Court Of Appeals in the case OF
Dolan, who murdered Mr. Noe. which was handed
down to-day, and which by unanimous vote Of the
judges arms the judgment Of the lower courts, Of
more than usual Importance II virtually puts end
to the doubts entertained to the legality OF the acts
OF Thomas Dunlap a. Commissioner OF Jurors in Now
York declaring that the drawing Of jurors by him IS
not illegal inasmuch he de tacto Commissioner
when juries drawn since ne appointed, and
in view OF the fact that he recognized such de
facto Commissioner by the proper officials who were
engaged with him In tho work The chief point
OF interest in the decision for tho legal
profession at large In tho State, however,
is the construction the Court puts upon that apparently
absurd feature Of the law OF 1873 which provides
the killing Of human being by person engaged in
the preparation OF felony when the Killing DONE
without any design TO effect DEATH" shall be murder
in the first degree Tho Interpretation put upon this
by has been that the law in fact made IL less
henous offence for person 70 kill another with de-
sign than II he killed without any design 70 effect
death" Tho present Legislature under the belief
that murdcrcrs might under this clause possibly
escape the iull penalty due to murder In
the FIRST degree have already passed bill
which 10 now in tho hands OF the Governor awaiting
his signature become law which strikes OF tho
act of 73 the words without any design to effect
DEATH" thus putting beyond the reach OF tho absurd
Interpretation wrongfuy put upon il by Of tho
lower courts, and declaring that q man who, while
perpctrating felony kills another commits murder in
the arst degree, matter whether he designs
TO effect the death OF his victim Tho following Is
certified copy Of the opinion OF the Court handed
down and which consigns Doan to the gallows II tho
Governor should not interfere
Earl, blythe demurrer 10 the plea In abatement
the following facts must DO deemed admitted:-That
for the county OF New York. was not wholly selected
from the petit jury lists made out by Douglas Taylor
Commissioners Of Jurors, ana that thai panel we'll us
the special panel Of grand jurors drawn to serve
at the term OF court at which the defendant was
dicted, contained the names Of persons who
Taylor, who was Commissioner OF Jurors, did not
attend upon or supervise the drawing OF the grand
jurors who were summoned by the Sheriff, and from
whom tho grand jurors who found tho indictment
were taken, and that he prevented from attending
such drawing, although DESTROYS Of dong, by the
half OF the defendant that these facts show
that he was not properly indicted, and there
this presents the first question for our consideration
1t Will DO useful to bring under review the laws
applicable to the city Of New York relating to tho
lection and drawing OF jurors SO that we may the
precise bearing Of the defects alleged In the plea do
INJURED
THE LAWS As TO DRAWING JURORS
Under the Revised Statutes e r s. Az sec 2l) II
provided that the city OF Now York each ward
should DO deemed town Tor the purpose Of returning
petit jurors aud that the Common Council OF the city
should provide by ordinance the IN which and
how often such selection should be made
should conducted list OF the Jurors thus seIected
required to be deposited with the County Clerk
and no was required 70 draw thirty Jurors 70 attend
courts, In tho presence Of the County Judge and
Sheriff Secs "a ~, 49, A.ccrtiGed list OF the per-
thus drawn was to be delivered TO the Sheriff.
$780, by chapter a. OF tho laws OF that year. the
number OF jurors to be drawn Tor any court not
exceeding eighy-our, instead Of thirty six and thus
the law NJ to selecting and drawing petit jurors ro-
manned until l647.
BY the Revised Statutes q R. s. 12o, sec ., il was
provided that the Mayor Recorder and Aldermen Of the
city OF New York should meet in July In each year as
Board Of Supervisors OF that city and county and
should prepare list Of the OF 600 persons TO
servo as grand jurors at the different courts TO be held
In the city during the then ensuing year, and until
lists should DO returned The ist was required TO be
the into box and draw thereirom from time TO
time, In the presence OF tho Sheriff. County
persons to serve as grand jurors (scc 10y, and
he was required TO deliver certified list OF the
thus drawn TO the sheriff, and he was required to
number required to be drawn changed to thirty
six, and thus the law renamed until changed men,
In 1s47 tchapter 495 provided that the list OF
petit jurors should be made by person be appointed
y the sp SnS sno Of ss city the Of The u
Pleas, and known as the Commissioner OF Jurors.
Ho was required 70 make list OF all
return the same the County Clerk The names thus
returned were required by the County Clerk to b.
placed In box, and he draw the jurors as be-
fore provided the courts and the persons
thus drawn were to be summoned BY the Sheriff.
In 1853 tchapter 4os) was provided that the per-
should DO selected from The persons whose names are
contained in the list OF petit Jurors the time being
siding Judge Of tho Supreme Court Chief Jus ps
OF the Superior Court the first Judge
Of tho cour. Of Common Pleas, tho Recorder
and the City Judge They were required 10 moct an
nuay At the office OF the Commissioner OF Jurors on
the nrst Monday Of September and organize by the
lection Of one OF their number as chairman four OF
thor number constituting q quorum The Commits
s'oner OF Jurors was required 10 attend their meeting
act clerk and produce 10 them all the lists OF Jurors
IN his possession. They were required to select from
these lists list Of not less than nor more than
persons TO serve as grand jurors In tho city until
The list thus selected was required TO DO cerunod
by the officers making H. and filed in the Office OF tho
County Clerk The names upon the list thus made
and died were TO be placed In box by tho County
Clerk, and he 70 draw thererom tho names OF tho
persons who were 10 serve al any court IS grand
jurors In the manner thon provided by law, except
that ono or more judges OF OF record was rc
quired TO DO present AZ tho drawing and certify the
same The number to DO drawn was not changed and
they were 10 be certified 70 and summoned by the
Sheriff
In 1870 chapter 5s0) the law was again some what
Changed as 70 the powers and duties OF the Commits
sioner VI Jurors and The selection and drawing OF
Jurors The Commisso OF Jurors was required 70
commence the preparation OF lists OF petit Jurors
tho month Of Nay In each year and insert therein the
names OF all persons possessing the qualifications
toned IN the law The law to ming the list In tho
County Clerks Office aud drawing and summon ing
petit jurors lcft unaercd the law a. to the
selection. certifying and hing " the annual list OF
less than 600 nor more than 1000 grand jurors
was also left unaltercd Section % OF shat
chapter however provides that grand Jurors shall be
drawn and summoned in tho same manner as petit
Jurors" and that he ballots shall be prepared By the
Commissioners Of Jurors and after being carefully com
pared with the lists regularly selected shall placed
IN the grand jury box Unless the Court OF oyer and
Tsrmincr or the Court OF General Sessions shall other
wise direct the Commissioner shall draw hity grand
jurors Tor each OF said courts the day that
petit Jurors 70 be empaneIed 81 the time shall be
drawn" This was the first law which authorized the
Commissioner OF Jurors draw any jury
Before that both petit and grand jurors were re-
CURED 10 be drawn by the County Clerk in tho pres
encc Of the officers named Such Is stil the Law,
ccpt as 70 The grand jurors, and they
CURED 10 be drawn by tho Commissioner AZ tho
County Clerks Office. in the presence OF the Of
hcers before required, and certIned and sum-
moned 'as before. Although any required 70 DO
drawn and summoned, as grand jury cannot be COM
posed OF more than twenty three less than SIX
teen persons, the Court must select from