People v. Miller (81 A.D. 255, 1903)

Parker, P. J.:

It is impossible to read the record in this case and not reach the conclusion that the defendant has been convicted by a jury that was not selected in accordance with the rules of law.

Mr. Crowell, who sat as a juror, had, from reading the city newspapers and from discussions which he had' heard, formed an opinion concerning the guilt or innocence of the prisoner, which it would take strong evidence to remove.

This fact, prima facie, disqualified him from sitting as a juror, and he should have been excluded under the defendant’s challenge for bias, unless he was able, under the -provisions of section 376 of the Code of Criminal Procedure, to state under oath that he believed that such opinion or impression would not influence his verdict, and that he could render an impartial verdict according to the evidence. If he should so testify, and the trial court should be satisfied from such testimony that he did not entertain such a present opinion as would influence his verdict, then the existence of his opinion, so formed, would not be sufficient to disqualify him. (See People v. McQuade, 110 N. Y. 300.)

The trial court inquired of Crowell as to whether he believed that he could, notwithstanding his opinion, render an impartial verdict on the evidence, and he answered that he thought he could; but no inquiry was made, and he said nothing as to whether he believed such opinion would influence his verdict. In People v. Wilmarth (156 N. Y. 566, 569) it was expressly held that although the juror makes the statement which Crowell made as above stated, yet if he neglects to state his belief as to whether his verdict Would be influenced by his opinion, his disqualification as a juror is not removed, and that it is error to allow him to sit. And in that case the fact that such a disqualified juror sat was held sufficient ground for the reversal of a judgment of conviction. The same thing is again held in People v. Flaherty (162 N. Y. 532, 535).

In addition to the above, Doxey, Keefe and Allington were summoned as jurors, and upon being examined as to their qualifications, it appeared that each had formed an opinion, that it would take evidence to remove. The same attempt was made to remove their prima facie disqualification as was made in the case of Crowell, and the same omission to inquire as to his belief whether such opinion would or would not imfluence his verdict occurs. Each of these jurors were thereupon challenged by the defendant for bias, and the challenge was overruled* The defendant thereupon challenged each of them peremptorily. Most of the jurors who sat in the case were chosen after the defendant’s peremptory challenges had been thus exhausted, and hence the overruling of such challenges was also error.

Within the authorities above cited the foregoing errors are sufficient to require a reversal of this judgment.'

There is another error claimed by the defendant which is more serious in its results. Upon being arraigned for trial, the defendant moved to be discharged on the ground that the information was not sufficient within the provisions of sections 148 and 149 of the Code of Criminal Procedure. The information is sworn to by one Chipp, and charges in general phrase that the defendant, in the city of Elmira, has violated section 322 of the Penal Code, in that she did unlawfully keep and maintain a disorderly and common bawdy house and house of prostitution. So far the information designates the crime complained of, but it does not state any facts tending to establish the commission of that crime. It then proceeds to state the grounds of deponent’s knowledge “ of said violation,” as follows: That e, in company with another, on May 27, 1901, about ten-forty-five — whether day or night does not appear — entered “ the place” of said defendant. What kind of a “ place ” it was is not stated. Whether it was a beer saloon, or a grocery store or a hotel does not appeal". He then proceeds to state that the door was opened by the proprietor herself, and it would seem that they entered the “ place ” and were seated in some room thereof. It is then further stated that