Pierson v. People.

VICTION of murder. The opinion states the case.

CONVICTION

James Wood, for plaintiff in error. The prisoner could not lawfully withdraw his challenge to the array after it had been sustained by the court. Lord Dacres' case, Kelynge, 59; 1 Woodeson, 346; 3 Inst. 30; People v. Cancemi, 7 Abb. 271; 18 N. Y. 128; Rex v. Williams, Russ. & Ryan, 224; Pfeiffer v. Comm., 3 Harris, 468; Rex v. Wolf, 1 Chit. 401; 18 Eng. C. L. 115; Comm. v. Canfield, Thatcher Cr. Cas. 510; Stephens v. People, 19 N. Y. 549; McCloskey v. People, 5 Park. Cr. 308; 1 Sellon Pr. 477; People v. McKay, 18 Johns. 212; State v. Williams, 1 Rich. 188; People v. Moneghan, 1 Park. Cr. 570. The court erred in overruling the objection to the facts testified to by the physician Coe as privileged communications. 2 R. S. 406, m. p. §§ 72, 73; Code of Civ. Proc., §§ 833, 834, 835, 836; People v. Stout, 3 Park. Cr. 670; Wilson v. Rastall, 4 T. R. 753; Rex v. Withers, 2 Camp. 578; Bank of Utica v. Mersereau, 3 Barb. Ch. 592; Parker v. Carter, 4 Mumf. 273; Greenl. Ev. 278; 1 Edw. Ch. 439; 4 Pai. 460; 14 Wend. 637, 641; Eddington v. Mut. Life Ins. Co. of New York, 5 Hun, 1; 67 N. Y. 185; Dilleber v. Home Life Ins. Co., 69 N. Y. 256; Jackson v. Lewis, 17 Johns. 475; McClusky v. Cromwell, 11 N. Y. 601; Newell v. People, 7 id.

97.

D. W. Noyes, for defendant in error.

EARL, J. William Pierson, the prisoner, was indicted in Livingston county for murder, in causing the death by poison of Leaman B. Withey, in February, 1877. He was tried at the Oyer and Terminer of that county in February, 1878, and was convicted and sentenced to be hung. His conviction was affirmed at the General Term of the Supreme Court. He has now brought his case into this court by writ of error, and seeks to have his conviction reversed for several errors which have been ably presented for our consideration by his counsel.

[Omitting an immaterial statement.]

When the case was moved for trial the prisoner challenged the array of jurors, and alleged as a ground of challenge that the second box was not kept by the clerk and brought into court at the time of drawing the jurors. The district-attorney took issue upon the challenge, and upon the trial of such issue the facts appeared as

Pierson v. People.

above stated, and the court sustained the challenge. The prisoner thereupon withdrew his challenge, and a jury was then impanelled and the trial proceeded. It is now claimed by the learned counsel for the prisoner that the challenge was properly sustained, and that after it was sustained the prisoner could not lawfully withdraw it and go to trial before a jury thus irregularly drawn.

It is not important for us to determine whether the challenge was properly sustained, because whether it was or not we are of opinion that the prisoner could withdraw his challenge and waive any irregularity which existed in this case. The maxim quilibet potest renunciare juri pro se introducto is of quite general application. One may waive constitutional provisions intended for his benefit. Lee v. Tillotson, 24 Wend. 337; Van Hook v. Whitlock, 26 id. 43; People v. Murray, 5 Hill, 468; Baker v. Braman, 6 id. 47; Embury v. Conner, 3 N. Y. 511. A prisoner may waive a trial by jury and plead guilty; he may waive a plea of autrefois acquit by not interposing it or withdrawing it; he may waive or withdraw a challenge to a juror; he could waive his right to have a challenge of a juror for favor tried by triers, and consent that it be tried by the court; he may waive objections to improper or incompetent evidence; in a court of special sessions he may waive a trial by jury and be tried by the court; he may waive a challenge to the array of jurors by a challenge to the polls; he could consent to the separation of the jury during the trial, when such separation, without such consent, would be ground of error. A man cannot legally be indicted and tried as accessory to a felony until the principal be convicted, and yet if he go to trial without insisting on the objection he is held to have waived it. People v. McKay, 18 Johns. 212; People v. Mather, 4 Wend. 229, 245, 246; 21 Am. Dec. 122; People v. Rathbun, 21 Wend. 509, 542; Stephens v. People, 19 N. Y. 549, 563; Gardiner v. People, 6 Park. Cr. 155. In People v. Rathbun, COWEN, J., said: "The prisoner may even waive his right to a trial at the hands of a jury on the merits by pleading guilty. Having this power, no one will pretend that he cannot consent to any thing less. He may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court." In Cancemi v. People, 18 N. Y. 128, a case very much relied upon by the counsel for the prisoner, twelve jurors were empanelled for the trial, and during the trial the prisoner stipulated that one juror might be withdrawn, and that the trial should proceed with eleven jurors.

Pierson v. People.

It did so proceed, and the prisoner was convicted. It was held that the conviction was illegal. The decision was based upon two grounds: that the parties could not by consent alter the substantial constitution of the court; and that the State has an interest in the preservation of the liberties and lives of its citizens, and will not allow them to be taken away without due process of law, even by the consent of those accused of crime. STRONG, J., said: "The substantial constitution of the legal tribunal and the fundamental mode of its proceeding are not within the power of the parties;" that “the State, the public, have an interest in the preservation of the liberties and the lives of the citizens, and will not allow them to be taken away without due process of law;'" and he further said that the right to affect by consent the conduct of a case in a criminal prosecution "should not be permitted to extend so far as to work radical changes in great and leading provisions as to the organization of the tribunals or the mode of proceeding prescribed by the Constitution and the laws. Effect may justly and safely be given to such consent in many particulars, and the law docs in respect to various matters regard and act upon it as valid. Objections to jurors may be waived; the court may be substituted for triers to dispose of challenges to jurors; secondary instead of primary evidence may be received, admissions of facts allowed; and in similar particulars as well as in relation to mere formal proceedings generally consent will render valid what without it would be erroneous.”

That case is no authority for the contention of the prisoner's counsel in this case. Here there was due process of law. The prisoner was tried by a common-law jury of twelve. The jurors all possessed the qualifications prescribed by statute, and they were selected and returned for jury service by the proper officials in the mode required by statute. The consent evinced by the withdrawal of the challenge did not affect the substantial constitution of the tribunal before which the prisoner was tried. The objects of all the jury laws are to distribute the burden of jury service among all those liable to such service and to secure impartial jurors of the requisite qualifications. To secure the first object lists of jurors are required to be made and returned to the county clerk in each county every three years. The names thus returned are required to be put into a box, from which jurors for any term of court are required to be drawn, and when a juror has once attended and served, his name is

Pierson v. People.

not to be returned to that box, but is to be placed in another box, to the end that he may not be drawn for service again until all have been drawn from the box first named. Code, § 1051. The second object is attained by requiring that only persons of the prescribed qualifications shall be returned for jurors, and that they shall be chosen by lot. Now all these substantial provisions were observed in this case. The jurors upon the array were all persons who had been returned as such by the proper officials. They all possessed the statutory qualifications, and they were chosen by lot. When these substantial conditions exist, the rest must generally be matter of form, which can be arranged or waived by consent, tacit or expressed. Here the only irregularity alleged is that the second box was not kept or brought into court. The fact that it was not kept was not known to the court at the time it made the order designating the box from which the jurors were to be drawn. In the exercise of its discretion, and to carry out the manifest purpose of the law, it ordered the jurors to be drawn from the first box. A court would not be expected to order jurors to be drawn from the second box, containing the names of those who had once served, so long as there were sufficient names in the first box. It cannot therefore be inferred, if all the boxes had been kept and brought into court and the orders then made, that different jurors would have been drawn and summoned from those who were actually drawn and summoned. But even if it could be thus inferred, it cannot be denied that the persons impanelled to try the prisoner were jurors made so in the mode prescribed by law and possessing lawful qualifications. If therefore there was any irregularity which would be ground of error, it was merely formal, affecting no public interest, trenching upon no public policy; and to hold that it could not be waived would be without precedent and against reason.

While Withey was sick, suffering from the poison which is supposed to have been administered to him, Dr. Coe, a practicing physician, was called to see him by the prisoner; and he examined him and prescribed for him. On the trial he was called as a witness for the people, and this question was put to him: "State the condition in which you found him at that time, both from your own observation and from what he told you?" The prisoner's counsel objected to this question on the ground that the information which the witness obtained was obtained as a physician, and that he had no right to disclose it; that the evidence offered was prohibited by the statute.

Pierson v. People.

The court overruled the objection, and the witness answered, stating the symptoms and condition of Withey, as he found them from an examination then openly made in the presence of Withey's wife and the prisoner, and as he also learned them from Withey, his wife and the prisoner. There was nothing of a confidential nature in any thing he learned or that was disclosed to him. The symptoms and condition were such as might be expected to be present in a case of arsenical poisoning. It is now claimed that the court erred in allowing this evidence, and the statute (§ 834 of the Code) is invoked to uphold the claim. That section is as follows: "A person, duly authorized to practice physic or surgery, shall not be allowed to dislcose any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity." This provision of the Code is a substantial re-enactment of a provision contained in the Revised Statutes. 2 R. S. 406. Such evidence was not prohibited at common law. The design of the provision was to place the information of a physician, obtained from his patient in a professional way, substantially on the same footing with the information obtained by an attorney professionally of his client's affair. The purpose was to enable a patient to make such disclosures to his physician as to his ailments, under the seal of confidence, as would enable the physician intelligently to prescribe for him; to invite confidence between physician and patient, and to prevent a breach thereof. Edington v. Mut. Life Ins. Co., 67 N. Y. 185; Edington v. Etna Life Ins. Co., 77 id. 564.

There has been considerable difficulty in construing this statute, and yet it has not been under consideration in many reported cases. It was more fully considered in the Edington case than in any other or all others. It may be so literally construed as to work great mischief, and yet its scope may be so limited by the courts as to subserve the beneficial ends designed without blocking the way of justice. It could not have been designed to shut out such evidence as was here received, and thus to protect the murderer rather than to shield the memory of his victim. If the construction of the statute contended for by the prisoner's counsel must prevail, it will be extremely difficult, if not impossible, in most cases of murder by poisoning, to convict the murderer. Undoubtedly such evidence has been generally received in this class of cases, and it has not VOL. XXXV-67