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§ 89. PROCEEDINGS WHERE PRISONER IS INSANE AT THE TRIAL. The supreme court have said that the statute is explicit that no insane person can be tried; but it does not state in what manner the fact of insanity shall be ascertained. That is left as at common law, and, although in the discretion of the court, other modes than that of a trial by jury may be resorted to; still, in important cases, that is the most discreet and proper course to be adopted.1

Upon the trial of a preliminary issue of this kind the clerk administers the following oath to the jury:

"You shall diligently inquire and a true verdict return in behalf of the people of the State of New York, whether A B, the prisoner at the bar, who now stands indicted for (naming the offence), be of sane memory or not, according to your evidence and knowledge."2

On such preliminary trial the defendant is not entitled to peremptory challenges, but challenges for cause may be made.3

The test of insanity, when set up to prevent a trial, is, whether the prisoner is mentally competent to make a rational defence, and when alleged as a defence to an indictment, it is whether, at the time of committing the act, he was laboring under such mental disease as not to know the nature and quality of the act he was doing or that it was wrong.4

There is, however, another statute which provides, that if any person in confinement under indictment, or under sentence of imprisonment, or under a criminal charge, or for want of bail for good behavior, or for keeping the peace, or for appearing as a witness, or in consequence of any summary conviction, or by order of any justice, or under any other than civil process, shall appear to be insane, the county judge of the county where he is confined shall institute a careful investigation, call two respectable physicians and other credible witnesses, invite the district attorney to aid in the examination, and, if he deem it necessary, call a jury, and for that purpose is fully empowered to compel

Freeman v. Peo., 4 Den., 20; Steph. Cr. L., 3, 4, 280-334. 1 Hale P. O., 34, 35; 4 Blac. Com., 395, 396; 1 Russ. on Cr., p. 14; Shelf on Lunacy, 467, 468; Stock on Non-Com., 35, 36; 2 R. S., 698, § 2; 3 Robinson's Prac., 115; 1 Mass., 102.

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the attendance of witnesses and jurors; and, if it be satisfactorily proved that he is insane, said judge may discharge him from imprisonment and order his safe custody and removal to the asylum, where he shall remain until restored to his right mind; and then, if the said judge shall have so directed, the superintendent shall inform the said judge and the county clerk and district attorney thereof, so that the person so confined may, within sixty days thereafter, be remanded to prison, and criminal proceedings be resumed, or otherwise discharged; or, if the period of his imprisonment shall have expired, he shall be discharged.1

§ 90. THE RIGHT OF TRIAL BY JURY.

The statute declares that issues of fact upon indictment are to be tried by a jury, and the Constitution of the State further provides that the trial by jury, in all cases in which has been heretofore used, shall remain inviolate forever.3

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Such trial shall be had by jurors drawn, summoned and returned in the manner prescribed by law, and where any court of oyer and terminer shall be held at the same time with any circuit court, the jurors returned for such circuit court shall be the jurors for such oyer and terminer, and the jurors returned for any county court shall be the jurors for the court of sessions appointed to be held at the same time.1

Under the Revised Statutes no venire is necessary in criminal cases. 5

At the common law the petit jury should consist precisely of twelve, and is never to be either more or less, and this fact it is necessary to insert upon the record."

And by our statute it is provided that the first twelve persons who shall appear as their names are drawn and called, and shall be approved as indifferent between the parties, shall be sworn and shall constitute the jury."

In calling a jury, where the name of a juror is called and he

1 2d vol. R. S., 5 ed., p. 893, § 49, as modified by Laws 1847, ch. 280, § 29. 2 R. S., 733, § 1.

• Const., art. 1, sec. 2; Wynehamer v. Peo., 13 N. Y., 378.

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1 Chit. Cr. L., 505; 2 Wm. Black., 719; 2 Hale P. C., 296; Cro. Eliz. 654;

3 Serg. & Rawle, 237; 7 Abb. Pr. R., 271.

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does not answer, his name is to be returned to the box with the undrawn ballots, and if he then returns into court, neither party can require him to take his seat as a juror.1

A trial by jury cannot be waived in criminal cases, and a conviction by a verdict of eleven jurors is illegal, although the prisoner requested and consented, and the prosecuting officer consented, in the progress of the trial, that one of the original panel of twelve jurors be withdrawn, and that the trial proceed with eleven.2

§ 91. OF THE RETURN AND SUMMONING OF JURORS.

The method of the selection and summoning of petit jurors is pointed out by the Revised Statutes. In the city of New York and the county of Kings, the jurors are selected by an officer known as the commissioner of jurors.3

In other counties of the State they are selected by the supervisor, town clerk and assessors of the several towns. In such cases duplicate lists of the persons selected are transmitted to the county clerk and filed with the town clerk. And in the city of New York and county of Kings, lists of the persons selected are also deposited in the county clerk's office. Previous to the holding of criminal courts of record, the clerk of the county in which such court is to be held is to draw the names of the persons to serve as jurors at such court, the same having been previously written upon ballots and deposited in a box, except in the county of Kings a majority of the judges named in the act for that county, and the commissioner of jurors, shall appoint one of their number to draw the names of the jurors from the box. The method and manner of making the drawing, the number of persons to be drawn, the officers who are to be present, the making and certifying of the names drawn, and the summoning of such persons by the sheriff, are all provided for by statutory enactment."

The county judge, at the time of drawing grand or petit jurors

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• Vide 5th ed., R. S., vol. 3, p. 695; Laws 1847, ch. 495, p. 734; Laws 1858, ch. 322, p. 517; Laws 1861, ch. 210, amended 1867, ch. 494, vol. 1, p. 1282:

for any county court or court of sessions, may designate any day during the term that he may deem expedient, on which the petit jurors shall attend for the trial of any issue of fact, and the sheriff shall summon such jurors on the day designated.1

§ 92. OF THE QUALIFICATIONS OF JURORS, AND DISCHARGING AND

EXCUSING THEM FROM JURY DUTY.

The qualifications of the jurors are fixed by the Revised Statutes of the State.2

They must be:

1. Male inhabitants of the town from whence selected not exempt from serving on juries.

2. Of the age of twenty-one years or upwards and under sixty years old.

3. They must be assessed, for personal property belonging to them in their own own right, to the amount of two hundred and fifty dollars, or shall have a freehold estate in real property in the county belonging to them, in their own right or in the right of their wives, to the value of one hundred and fifty dollars.?

In certain counties of the State, viz: Niagara, Erie, Chautauqua, Cattaraugus, Allegany, Genesee, Orleans, Monroe, Livingston, Jefferson, Lewis, St. Lawrence, Steuben, and Franklin, persons holding an interest in a contract for the purchase of land, under which improvements have been made to the value of one hundred and fifty dollars, and who shall own such improvements, and who have been assessed on the last assessment roll of the town for such land in their possession, have a sufficient property qualification.*

So also persons residing on the New Stockbridge tract, in the towns of Vernon and Augusta in the county of Oneida, and Lennox and Smithfield in the county of Madison, who shall be in the possession of lands under a contract for the purchase thereof, and shall be worth one hundred and fifty dollars in personal property, or shall have made improvements upon lands to that amount, are deemed to possess property qualifications to serve as jurors in any court holden before a justice of the peace in the town.5

Laws 1861, ch. 8, p. 14.

2 R. S., 412, § 5.

• Id.

2 R. S., 412, § 6.

• Id., 7.

In the city of New York it is not necessary, as a qualification for a juror that he should be actually assessed in said city; but all persons residing in said city, who shall be qualified to serve as jurors and not exempted by any of the laws of this State, shall be selected as such whether they have been assessed or not.1

4. They must be in the possession of their natural faculties, and not infirm or decrepid.

5. And free from all legal exceptions, of fair character, of approved integrity, of sound judgment, and well informed.2 Aliens are also incapable of serving upon juries.

County of Kings. In the county of Kings it is declared that, in addition to the above qualifications of jurors, that the assessor and commissioner of jurors in that county shall not select as jurors the persons named in the act appointing such commissioner as exempt from the performance of jury duty.

The act above referred to, in relation to the county of Kings, provides that every person shall be exempt from serving on a jury when it shall satisfactorily appear:

1. That such person is not at the time the owner in his own right, or in the right of his wife, of real property of the value of one hundred and fifty dollars, or of personal property of the value of two hundred and fifty dollars.*

2. That such person is under the age of twenty-one years, or over sixty years of age, or is not in the possession of his natural faculties, or that there is any legal exception against him.

3. That such person is a minister of the gospel, and officiating as such, and not regularly engaged in any other business, avocation or calling.

4. That such person is a regular practising physician or surgeon, and has patients requiring his daily attention as a practitioner of medicine, and is not regularly engaged in other business.

5. That such person is a member of the bar of the Supreme Court of this State in actual practice, having causes in court, and is not regularly engaged in any other avocation.

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6. That such person is a justice of the peace, or holds any other

'Laws 1847, ch. 495, § 1.

2 R. S., 412, § 5.

2 R. S., 721, § 29.

2 R. S., 412, § 52.

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