The People of the State of New York, Respondent, v. Alfred Thayer, Appellant

The People of the State of New York, Respondent, v. Alfred Thayer, Appellant. Third Department, May 05, 1909. Trial — waiver of disqualification of juror by failure to challenge. Both at common law and under the Code of Civil Procedure an objection to the qualification of a juror is available only upon a challenge even though the disqualification is not known to the party at the time of trial. This rule applies in criminal as well as civil cases, Hence, a new trial in a criminal case'will not be granted upon the ground that one oí the jurors was over seventy years of age if no objection to his qualification was made. Appeal by the defendant, Alfred Thayer, from an order of the County Court of Chemung county, entered in the office of the clerk of said county on the 3d day of September, 1908, denying the defendant’s motion for a new trial. Richard H. Thurston, for the appellant. Harry L. Bogart, for the respondent. [MAJORITY — Sewell, J.:] Sewell, J.: The defendant was convicted of the crime of robbery in the first degree. One of the ¡jurors who served-on the trial was over the age of seventy years. . It appeared by affidavits that neither the defendant nor his counsel knew the juror was disqualified at the time of the trial.' Ho challenge or other objection to his qualification was made. The question presented is whether the acceptance of the juror by the defendant was a waiver of the objection to his qualification. . It was early settled that a failure to object to the -qualifications . of a juror was a waiver of all objections, although the disqualification was not known to the defeated party at -the time of the trial. (Eggleston v. Smiley, 17 Johns. 133 ; Hayes v. Thompson, 15 Abb. Pr. [N. S.] 220; Seacord v. Burling, 1 How. Pr. 175 ; Bennett v. Matthews, 40 id. 428; Stedman v. Batchelor, 49 Hun, 390; Dayharsh v. Enos, 5 N. Y. 531.) The following cases sustain the claim that this rule has been generally observed in criminal cases: People v. Jewett (6 Wend. 389); People v. Rathbun (21 id. 542); People v. Mack (35 App. Div. 114); Stephens v. People (19 N. Y. 549); Pierson v. People (79 id. 424). In People v. Mack, Mr. Justice Merwin said : “ In many criminal cases it has been held to be immaterial whether or not the defendant, in cases not capital, knew before the verdict the disqualification of the juror, as long as he had an opportunity to challenge and question the juror as to his qualifications, but neglected to do so,” and cited State v. Vogel (22 Wis. 471); King v. Sutton (8 B. & C. 417); State v. Quarrel (2 Bay [S. C.] 150); Williams v. State (37 Miss. 407). But aside from these considerations the law was settled by an amendment to section 1180, of the Code of Civil Procedure (Laws of 1877, chap. 416). The section as amended provides that, “An objection to the qualifications of a juror is available only upon a challenge,” and this provision is made to “ apply equally to a criminal and a civil action or special proceeding, and to a court of criminal and a court of civil jurisdiction” by subdivision 7 of section. 3347 of the Code of Civil Procedure. It follows that the order of the County Court should be affirmed. A.11 concurred. Order of the County Court affirmed. See also Laws of 1901, chap. 243.— [Rep.