# People v. Prior

> New York Court of Appeals · July 19, 1945 · 294 N.Y. 405

URL: https://www.frixlaw.com/law-library/cases/3590062

## Case

- **Full name:** The People of the State of New York, Respondent, v. Daniel H. Prior, Appellant; The People of the State of New York, Respondent, v. Michael T. Smith, Appellant. (2 Cases); The People of the State of New York, Respondent, v. Daniel Willigan and John Willigan, Appellants; The People of the State of New York, Respondent, v. James S. Collins, Appellant
- **Court:** New York Court of Appeals
- **Decided:** July 19, 1945
- **Citations:** 294 N.Y. 405; 63 N.E.2d 8
- **Precedential status:** Published
- **Opinion:** Concurrence by Lehman
- **Judges:** Lehman, Conway, Desmond, Lewis
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3590062

## Opinion text

Lehman, Ch. J.
(concurring). I agree with Judge Lewis that no ruling made by the court in the impaneling of the grand jury furnishes sufficient ground for setting aside the indictments, though I am convinced that a number of rulings are erroneous as matter of law and that the methods used in questioning the talesmen and in objecting to their qualifications are not sanctioned by law and cannot be approved by the court. In reaching the conclusion that in spite of such errors the indictments may not be set aside on motion, I accept Judge Desmond’s definition of the scope of the court’s power to set ■aside an indictment on the ground that it was found by a grand jury which was not impaneled in accordance with law, and J accept, too, Judge Desmond’s statement of the general principles which should guide the court in the exercise of that power. Though section 313 of the Code of Criminal Procedure enumerates the grounds upon which a defendant may move to set aside an indictment, and the motion to set aside the indictment in this case is not based on any of these grounds, yet the Legislature has not, by that section, deprived the courts of the State of their
“
inherent power and duty ” to protect the citizen in his prerogatives guaranteed' by the Constitution of the United States and the Constitution of the State of New York.
(People
v.
Glen,
173 N. Y. 395 .) Indeed, the Legislature could not deprive the courts of that power or compel the courts to sanction the violation of a right guaranteed by the Constitution. The Constitution of the State of New York guarantees that
*413
no person will be held to answer for a felony ‘ ‘ unless on indictment of a grand jury ” (art. I, § 6), and though the Constitution does not define the mode of impaneling a jury and the Legislature has power to prescribe the method which shall be followed in procuring an impartial jury, neither the Legislature nor the court may sanction a method which does not give reasonable assurance that a jury so chosen will conform to the traditional concept of a “ grand jury ” and will be impartial. A jury otherwise selected is not a
“
grand jury ” within the meaning of the Constitution and the court has both the power and the duty to set aside an indictment found by it. The court has, however, no inherent or statutory power to set aside an indictment found by a grand jury because there were errors in applying the statutory method of procurin an impartial jury where the jury as impaneled conforms to the traditional concept of a grand jury and consists of a qualified group of men and women who represent a fair cross section of the impartial citizens of the county.
Here, as Judge Desmond points out, the prosecutor was permitted to show each talesman a list of about 330 persons and to ask each talesman to mark on the list the names of the persons with whom the talesman was acquainted, but the attorney appearing for a person held to answer a charge for crime and entitled to challenge the talesmen was not permitted at any time to see the list. To permit the prosecutor to show a paper to the jury, to question talesmen upon it, and to base a challenge upon the answer of the talesman without allowing the other side to see the paper is, I think, patently unfair and even contrary to law. By such tactics an unscrupulous or overzealous prosecutor, unhindered by a complaisant judge, might succeed in
“
packing ” a grand jury with men chosen by him and secure a grand jury obedient to the suggestions of the prosecutor and which might find an indictment based upon his suggestion rather than on the evidence.'
All that I concede and I concede, too, that the court should not approve or sanction such a method of selecting the grand jury, but the question remains whether the extraordinary method used in examining and selecting talesmen casts reasonable doubt in this case upon the impartiality of the jury or upon its representative character. The test whether an indict
*414
ment may be set aside on the ground that the grand jury which returned it was not impaneled according to law is, as I have said, whether the grand jury is qualified and conforms to the traditional concept of a grand jury — not whether the court committed serious error in overruling objections to the manner in which the jurors were questioned by the prosecutor and in sustaining challenges by the prosecutor though based on insufficient cause.
Judge Desmond has pointed out that in a substantial number of instances a challenge was sustained or a juror was excused at the suggestion of the prosecutor though the ground for the challenge or suggestion was insufficient. The record shows a consistent effort by the prosecutor, frankly stated, to obtain only jurors “ who are not connected in any way with any official here in Albany or not tied up in any way in politics or with anyone in politics.” It shows, too, I think, a consistent effort by the Justice presiding at the Extraordinary Term to obtain such a jury. Political activity or acquaintance with others who are active in the political life of the city, county or State, is certainly no legal ground for a challenge which the court would be bound to sustain and constitutes no legal disqualification for service as a grand juror. -Political activity or acquaintance with those active in politics may, nonetheless, furnish ground for doubt whether a juror will judge impartially a charge which touches men with whom he associates more or less intimately; and where a grand jury is summoned for the investigation of “ crimes committed by persons or corporations having business dealings with Albany County or its subdivisions ” a grand jury from which the court has excluded all who are associated with “ anyone in politics ” may still be broadly representative of the people of the vicinage if the test is applied with honest intent to obtain an unbiased jury and if no person is excluded from the jury because of his political views or Ms enrollment in a political party or because he belongs to a particular social, religious or economic group.
Here, though the list of persons concerning whom the tales-men were questioned was not shown by the prosecutor to the attorney authorized to appear for the person “ held to answer a charge for crime ”, no talesman was challenged or excused until he had been questioned as to his acquaintance with par
*415
ticular persons and, though in some instances challenges were sustained because of such acquaintance where, so far as appears on this record, such acquaintance furnished no reasonable ground for a challenge, yet in spite of such errors twenty-three qualified jurors were procured and a substantial number of these jurors were enrolled in each of the two major political parties although not in the same ratio as the percentages of party enrollment in the county. Errors in rulings on the examination of talesmen there were; but I find no reason to believe that any ruling was made except for the honest purpose of procuring jurors whose judgment would not be swayed by friendship or personal interest. Though I agree that excess of zeal in seeking that end may have resulted in the exclusion of some unbiased jurors, in the absence of ground for a finding that any talesman was excluded except for cause which
in the opinion of the court
might create bias, the exclusion of persons not shown to be disqualified is not sufficient cause to set aside an indictment found by jurors who are qualified.
The order of the Appellate Division should be affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3590062. Public record. Not legal advice.