The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-01-06
Challenge to the Array Of
Jurors Sustained.
Judge Westbrook on the Metropolitan Sys-
tenn Of Making Up Panels
Proprietary Interests in Tele-
graphic News
Looking Out for Relatives and Creditors Look.
Ing Out for Themselves.

In anticipation OF the decision OF Judge Westbrook
70 whether the challenge to the array Of jurors In
the Of william NJ Tweed would DO sustained, the
Supreme Court, Circuit was crowded yesterday morn
Ing. Counsel for plaintiffs and defendants were
promptly hand, and were, doubtless equally san
guine Of victory
Judge Westbrook took his on the bench at half
past ten O'CLOCK and the been called rendered
his decision follows:-
The challenge TO the array Of the special or struck
Jury which has been summoned for this trial presents
two questions which are-First Has tho jury been Sc
in the Clerks Officer and second, What is The effect
upon the entire panel Of placing upon the list Of jurors
oerneo by he esors TO have been selected the name
not appear upon the list OF names from which the
selection should have been made, and which
both the traverse OF the challenge and the evidence
of the elisors show selected by them Each
OF them will be noticed in the order stated Premi
naxiy 10 the examination OF tho specific objections 1t
Is important TO notice consideration which Is neces
sary to be remembered In passing cach and that
Is the object of the statute which makes special or
struck jury 1t was passed to give parties difficult
and extraordinary case jury OF moro than usual
itself Srecng the Clerk OF the County or the
esors TO its selection, are most indifferent be-
tween the parties ana best qualified TO try such cause
The mode OF obtaining such jury Is clearly pointed
out by statute, and as II is special proceeding de-
signed for particular purpose and out OF the ordinary
of procedure the mode OF obtaining II which
the statute points out must be pursued In the case
Of ordinary jury when the sole object is to obtain
y,
tanned minor noncompliance with statutes may
be overlooked; but when the object is the pro-
duration Of 'most Indifferent between the parties
and best qualified 10 try such cause" and the way Of
Its obainment is prescribed, it necessarily follows
that that way must be mandatory and is TO be rigdy
esors from proper list Of jurors filed In the Clerks
oicef In beginning this discussion must see what
the provisions Of the statute on the subject A
the time appointed the Clerk of the County shall attend
nj his Office with the original lists OF the jurors returned
20 him by the officers OF the several towns who
liable
their counsel shall proceed TO strike jury as fol-
Tho Clerk shall select from such lists
OF fortyeght persons whom he shall deem most indif
ferent between the parties and best qualified TO try
such cause" They are to be taken from the lists OF
of the several towns Suppose, n the selection
in tho country that the lists filed and the
the lists furnished TO the Clerk mperfect-that
the officers had not done their duty-be vad'
think not because the Clerk has obeyed the statute and
the omission by the officers would not nvalidate
unless corrupty done or working q perceptibe preju-
dice. The officers in making returns, scarcely do
their full duty, and If this argument is to prevail
neither struck jury nor any other could be obtained
In applying this statute TO New York city we must in
terpret it and its machinery, modified by legis
laon, applicable to this city in lieu OF lists by town
officers ned with the Clerk from which the selection is
made (see chapter 495, Laws Of lsi7, section 81 You
prepared by the Commissioner of Jurors
as soon after the 1s day of May in each year the
same can be prepared, and when such "list is COM
pleed certified copy shall be delivered TO the County
Clerk who shall prepare the ballots and deposit them
in the box in the manner now required by law. Tho
said Commissioner may at any time in like manner ro-
burn the names OF any persons written in the list no
sufficient TO excuse such persons and their
shall be deposited in the box Jurors for the
residue OF the year that the other jurors to serve
From the vast aud huctuatng population OF tho city
perfect list jurors can obtained
time for the necessities Of courts tho judgment Of
the Commissioner Of Jurors upon the whole body
OF those possibly liable be Obtained. Hence, from
necessity well by statute he send lists from
line TO me and all those sent up to the time Of the
election Of the struck jury are those from which the
selection Is made. As in The case OF lists furnished by
town officers they may be incomplete and Imperfect;
yet they those from which the selection must be
made, and when so made therefrom the mandatory
law Is oboyed. Now, had the Commissioner Of Jurors
made and fled such lists when the present selection
was made 1t is true he had not filed copy certified
to DO copy OF lists made out and prepared by him,
but II such certified copy had been died 1t would
only have been Official notification to the clerk OF
the persons he had selected serve as jurors and
whom the law gave him the right so TO select Now H.
instead of telling the clerk indirectly what jurors he
has selected as competent to serve by certify
ing TO copy o. hsi wnIcn me me mas las
tells the clerk directly who the jurors selected are by
simply declaring what substantial difference exists.
she resultthe selection OF jurors competent 70
indication thereof TO the clerks reached
and the form OF the communication to that on
GER whether indirectly, by certifying TO list as true
copy OF list OF names selected directly by decar
ing they are the persons chosen, can mako no differ
once As the Clerk Of the county had in his Office,
when the selection Of jurors In this case was made,
lists OF names whom the Commissioner OF Jurors, by
official certificates, had declared competent 10 serve
this first ground Of challenge cannot prevail Second
What Is the effect Of summonng only twenty three
whose names appeared tho lists from which
the selection should have boon mado and whom the
elisors chose, and Of additional person. George
w. Southwick whose name does not appear on the
lists to which the choice must be limited,
and whom the eisors did not In fact designate
The plain requirements OF the statute aro-1rs forty
esht names shall be chosen from the lists returned TO
the clerks office by the elisors second, when each
paTty has stricken OF from the selected list twelve
names twentyfour shall remain, who have and all
which Issues 10 the Sheriff shall command him to
the identical twenty-four men-no more no lessI
fourth, the Sheriff can only summon the men whom
such process directs him summon This is evident
from the provisions OF the statute, the 4sth section
Of which Second Revised Statutes ass, Edmunds'
ednon requires the selection Of forty eight persons
fro the original lists OF jurors returned clerks
ONCE from which us. eacn party shall alternately
result OF the selection twenty names whcreupon
there shall be made out "a list OF the namos OF tho
twenty-four persons stricken outp which shall be
Certified ITO be the persons drawn as Jurors
pursuant this order Of the Court and shall deliver
such list certified 10 the Sheriff OF the county" The
I0th section then requires the sheriff summon the
persons whose names are contained on the lists go
delivered TO him by the clerk" and there s author.
ity for the sheriff 10 any other persons than
those whose names contained upon such lists.
Tested by these rules the procession such the list 70
be furnished the Sheriff s-was radically defective II
only did contain names all OF whom were to be
found upon the list from which the choice was TO be
made, but II had more radical defect than that IL
did contain the twenty-four upon which the
Judgment Of the elisors had been exercised. II con-
famed twenty three SUCH and 10 IL was added one,
George ". southwick never chosen, and from was
omitted one John G. Southwick confegsedly two dis
tinct persons, both having an actual existence
and both presently, who had been selected When
the process TO the Sheriff, which must contain the
names Of twenty-fou persons who have been selected
and chosen Ia mode pointed OUT includes the names
OF ouy twentythree 10 be held 70 be validf And
when the sheriff must summon the persons named In
the process, can he summon any ohers2 II seems 10
me that the TO these questions must be IN the
negative The challenge 10 The array, thon must DO
sustained on this ground because rst II the certificate
Of the eisors be taken the evidence OF their choice
sweniy four have not been chosen as the law d.
reefs Second, II the certificate Of tho esQTs be not
the sole evidence OF such choice but he may resort
the counsel for the plaintiffs insist TO the evidence OF
the parties who made the selection then the process
or authority for the summoning defective, because
dd not drectth summcnng Of the persons chosen In
esposng OF the questions which the challenge involves
have not overlooked the importance OF this cause
nor the desirabity OF early and a speedy trial A
result wnicn VIII be such In fact and In truth only
be reached by conforming 70 plain rules Of law and