The People v. William Donaldson. But there was more than that in the case. Was not the death effected in the heat of passion, in a cruel and unusual manner? For if it was it came within the second degree, though the dangerous weapon mentioned in the description of the third degree had been used. Verdict, guilty of manslaughter in second degree. NEW YORK OYER AND TERMINER. APRIL, 1849. Before EDMONDS, Justice, and two aldermen, THE PEOPLE V. WILLIAM DONALDSON. All challenges to jurors for cause must be interposed at the same time. After a challenge for principal cause has been tried, a challenge to the favor cannot be made. A juror challenged for having formed an opinion cannot be made to answer whether he has formed such opinion, because the answer would degrade him. A mere hostility to capital punishment will not exempt a juror from service. To be so exempt he must belong to some religious denomination, and have such scruples as would prevent his finding a verdict of guilty, where capital punishment would follow. When a homicide is excusable, or justifiable, and when murder or manslaughter. THE prisoner was indicted for murder. In impaneling the jury, the prisoner challenged a juror for principal cause, on the ground of having formed and expressed an opinion as to his guilt or innocence. The People v. William Donaldson. The challenge was tried by the court, and judgment rendered that the challenge was not true. The prisoner then interposed a challenge to the favor, on the ground of bias, in having formed an opinion. The District Attorney objected that the challenge was too late, as all the challenges for cause must be interposed at the same time, and that when the juror is called to be sworn. The Court so held, and for the reason that as the challenge for principal cause is triable by the court, and that to the favor by triers, the practice objected to would, if allowed, be virtually constituting the triers a board of review over the ruling of the court. A juror was challenged to the favor, for bias, in having formed an opinion, and the juror himself was sworn as a witness on the trial of the challenge. The counsel for the prisoner, who had interposed the challenge, asked the juror if he had formed any opinion as to the prisoner's guilt? The District Attorney objected to the question, on the ground that the juror was not obliged to answer the question, and the challenge must be supported by other evidence than that of the juror. The Court said: It is true the juror cannot be compelled to answer the question, but he is a competent witness on the point, and he may answer the question if he pleases. The reason why he cannot be compelled to testify is because the answer may tend to disgrace him, for it is certainly as shameful a violation of duty for a man who knows he is liable to perform jury duty, to form an opinion on a case which may come before him for trial, as it would be for one of the judges, during the sitting of the court, to form an opinion in a case yet to be tried. It is the duty of both those functionaries to take care to keep their minds free from all bias, and it is cer The People v. William Donaldson. tainly disgraceful for either to avow that they have violated that clear dictate of duty. The answer which the question may draw out must be not merely one that may tend to disgrace the juror, but such a one as will directly and certainly show his infamy; and the court must see, for itself, that the answer will do that before it can excuse him from answering. Here it is manifest that if the juror, knowing that he was liable to sit in the particular case, had formed an opinion upon it, it would certainly and directly show his infamy. But it is for the juror to object, not the counsel for the party. The juror may be used as a witness on the trial of the question of his own indifference, and he may, if he pleases, degrade himself. The juror answered the question, and the challenge was found "untrue." A juror was challenged by the district attorney for principal cause, on the ground that he was opposed to capital punishment. The juror, being examined, testified that he was opposed to capital punishment, so that he was afraid that he should lean more to mercy than to justice. The Judge: It is precisely such men that we want on our juries. That is the way God deals with us, and the way man ought to deal with his fellow. I, too, am opposed to capital punishment, not because I think we have no right to take life when the good of society demands it, but because it is a relic of barbarous days, unbecoming an enlightened age, and because it is a futile punishment. All experience has shown that the fear of death is a poor deterrent from crime, and that is shown strongly in the fact that to one compulsory execution for crime there are hundreds of voluntary suicides. Still, as long as the law demands it, it is the duty of courts and juries to enforce it, and it is no objection that doubts of the wisdom of the law should cause them to temper justice with mercy, and deal gently with the erring. The People v. William Donaldson. The law relieves from the duty, in capital cases, those only who belong to some religious denomination whose opinions are such as to preclude them from finding any defendant guilty of an offense punishable with death. The challenge was overruled. It appeared on the trial that the deceased was a laboring man, about twenty-three years old, stout and compactly built. He was addicted to the use of liquor, and when under its influence was quarrelsome. He was an Irishman. He was slain in one of the streets of New York, about one o'clock at night. He had spent all the night, thus far, in drinking saloons, and was on his way home with one of his companions when they met a party of three or four men who were singing, and evidently in high spirits. As the parties met each other, the deceased stopped, raised his fists in a fighting attitude, turned 'round, as if for a fight, and called them. sons of bitches. The party of singers started and ran away from him. He ran after them and overtook them. One of the party told him to go away; he was drunk, and they did not wish to have anything to do with him. The prisoner said something to him, and he "squared off" against him. The prisoner retreated some twenty paces, the deceased making passes at him, until the prisoner, with his left hand, struck him one blow. The deceased retreated up the street a short distance, and then returned toward the prisoner, who turned and fled with his companions. One of them said to the prisoner, "You hit him a pretty good lick; you have knocked the rum out of him." This was said because they saw the deceased had fallen, and was vomiting. The prisoner answered he was sorry for what he had done. He then had a dirk knife in his hand, one that he was in the habit of carrying about with him, and which opened with a spring. One of his companions said to him, "You didn't use that, did you?" He replied, "He was a bigger man than 11-vol. 2. The People v. William Donaldson. me, and I didn't know but he would kill me and get the best of me. I'm afraid he will never speak again." The prisoner was a slight man, of about twenty-six years of age; was the clown and comic singer at a circus, and was returning home after an evening's performance, when thus assailed by the deceased. The witnesses testified that there was no way for the prisoner to escape, unless he could have beat the deceased in running, and that when the fatal blow was given, the prisoner was in imminent danger of being struck by the deceased, who was a much stronger man than him. In a short time after the prisoner and his party retreated, the watchmen found the deceased lying on the sidewalk. They removed him to the watch-house, and when they got there they found he was dead, from a stab he had received just over the right collar bone. The police had no clue to the perpetrators of the homicide, and they arrested and held in custody the man whom the deceased was accompanying home when the affray occurred. The prisoner heard of this and said it was unfair that an innocent man should be made to suffer. He therefore concluded to leave New York, after obtaining from his companion who had been with him, in the affray, a promise that as soon as the prisoner got away from town, he would disclose the whole affair to the police. He accordingly left New York, and went to New Orleans, but his companion did not make the disclosure, because he deemed it unnecessary, as the man who had been arrested had been set free. In the mean time, the police could obtain no clue to the perpetrators of the homicide, though a reward of $500 was offered. This occurred in November, 1847. From that time until March, 1849, the prisoner was engaged in performing at circuses in the southern and western parts of the country. At the latter date he returned voluntarily to New York, and |