Ulster County NyArchives Court.....People, Of State Of N Y Vs. Frank Rose 1889
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Source: Reports Of Cases - N Y
Written: 1889

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK ROSE, Appellant.

Presumption that a grand jury was sworn — objection to an entire question, a 
part of which is allowable and a part not — refusal to charge that the neglect 
or refusal to testify does not create a presumption against a party accused of 
crime.

Upon an appeal from a judgment of conviction, under an indictment for robbery in 
the first degree, the defendant objected that the grand jury was not duly sworn. 
The affidavits submitted by him showed that the persons sworn as grand jurors 
were called and took their proper places; that a foreman was chosen and sworn in 
the usual form, standing in the presence of the court and of his fellows; that 
immediately thereafter the deputy clerk, intending to administer the usual oath 
to the other grand jurors, read over the same to them in their presence and 
hearing.

It appeared that the jurors were there to take the oath, and intended to take 
it; that this ceremony took place in the presence of the county judge, and that 
no objection was made by any one and no suggetion was offered of any other or 
different form of administering the oath.

Held, that the presumption was that the statutory requirements were 
substantially observed.

That the recital in the indictment that "the jurors of the People of the State 
of New York, in and for the body of the county of Ulster, then and there being 
duly sworn, affirmed and charged, upon their oath and affirmation, to inquire 
for the People," etc., had not been impeached.

A witness gave testimony for the defense tending to establish an alibi. The 
district attorney, notwithstanding the defendant's objection and exception, was 
permitted to ask him: "Were you arrested and convicted at Clintondale for an 
offense or crime?" He answered: "I don't know whether I was convicted or not; I 
was arrested and they told me to move out of town, so I moved."

Held, that it was proper to ask him if he had been convicted of crime, but not 
proper to ask him if he had been arrested.

That as part of the question was allowable and part not, and the objection was 
taken to the whole question, and the attention of the court was not called to 
the inadmissible portion, the objection was properly overruled.

The court refused to comply with the request of the defendant's counsel, to 
charge the jury to "disregard the remarks of the district attorney in respect to 
the fact that Rose (the defendant) was not sworn, and that they could draw no 
inference against him from that fact; that they could not consider it one way or 
the other; that it creates no inference of guilt."

Held, that as section 393 of the Code of Criminal Procedure declares that the 
defendant's "neglect or refusal to testify does not create any presumption 
against him," it was the duty of the court, by proper instructions to the jury, 
to protect the defendant against the prejudice or inference which might result 
from remarks made upon this subject by the district attorney, and that the 
judgment of conviction and sentence in this case should be reversed.

Appeal from a judgment of conviction of the defendant upon an indictment 
charging him with robbery in the first degree after a trial at the Ulster County 
Sessions; and also from an order of the said Court of Sessions, made on October 
17, 1887, refusing and denying a motion to set aside the indictment herein, and 
from the whole of said order; and also from an order of the said Court of 
Sessions, made on the same day disallowing a demurrer to the indictment herein; 
and also from an order of the said Court of Sessions, made on December 20, 1887, 
refusing and denying a motion for a new trial herein, and from the whole of the 
said order.

A. H. Van Buren, for the appellant. 

_. N. Vanderlyn, for the People. 

Landon, J.:

The objection that the indictment contained two counts, one for robbery in the 
first degree and the other for larceny in the first degree, is not valid. The 
district attorney could not be quite sure that the evidence would establish the 
higher crime, and he therefore had a count for the lower one. "Where the acts 
complained of may constitute different crimes, such crimes may be charged in 
separate counts." (Code Crim. Pro., § 279.) It was reasonably clear, upon the 
face of the indictment, that the second count embraced the same acts as the 
first. The defendant was plainly advised by the indictment that he was not 
charged with two separate offenses, but that his single offense was charged as a 
robbery and larceny, meaning that it was either the one or the other.

The defendant objects that the grand jury was not duly sworn. If the fact is 
established, the body of men acting as a grand jury was incompetent to act, and 
the paper purporting to be an indictment was not "a true bill" or legal 
indictment. Upon the defendant's arraignment, and before pleading, he moved to 
set aside the indictment, alleging the fact to be that the persons who acted as 
the grand jury had not been duly sworn. Affidavits were submitted in support of 
the allegation. The affidavit of Stephen D. Hood, after reciting the opening of 
the court and the calling the names of the persons returned as grand jurors, and 
their taking their seats in the jury-box, proceeds: "That after said persons 
were so in said jury-box, the said Hon. William S. Kenyon appointed Joseph E. 
Hasbrouck to act as foreman of said grand jury. That immediately thereafter the 
said Israel Snyder told said Joseph E. Hasbrouck to stand up and hold up his 
right hand. The said Joseph E. Hasbrouck thereupon stood up, and the said Israel 
Snyder immediately read to him from a book what purported to be the oath 
prescribed by law to be administered to the foreman of grand juries. The said 
foreman did not request to be sworn in any other manner than by laying his hands 
upon the Gospels, but he was not so sworn, but by the uplifted hand. That 
immediately thereafter the said Israel Snyder, without stopping in his reading 
and without asking the remaining persons, so returned as grand jurors and in 
said jury-box, to stand up or to raise their hands, and without they or any of 
them standing up or raising their hands, and without addressing them, or either 
of them, in any manner, continued reading from said book what deponent 
understood to be the oath prescribed by law to be administered to grand jurors. 
That after said Israel Snyder had so finished, none of the said persons made any 
reply, or in any manner recognized or acknowledged that they had taken an oath. 
That immediately thereafter said persons were charged by Hon. William S. Kenyon, 
and the then retired from the court-room."

The affidavit of the deputy county clerk is as follows: That he attended a Court 
of Sessions of the county of Ulster, held at the court-house in the city of 
Kingston on the said 26th day of September, 1887, in his official capacity and 
as the clerk of the said court; that a grand jury had been summoned and were in 
attendance at said court on the said 26th day of September, 1887; that this 
deponent, acting as aforesaid, did, at the time and place aforesaid, administer 
to the foreman of the said grand jury, who had been then and there duly 
appointed by the court, the oath in the usual form and in the manner required by 
law; that thereafter, and at the same time and place, deponent did administer to 
the remaining members of the grand jury (except one, who thereafter affirmed) 
the usual oath in the form and in the manner required by law; that at the said 
time and place, and at the time of the administration of the said oath, the 
grand jurors, and each of them, did give their attention thereto, and that the 
said grand jurors and each of them (except the one thereafter appearing as 
aforesaid) did thereupon, and immediately after the said oath was administered, 
manifest their consent thereto; and did then and there, and in the presence of 
said court, assent to the contents thereof; and they and each of them did, then 
and there, take the said oath in due and legal form and manner, except one grand 
juror, to wit, Egbert Johnson, who was not present at the time and place 
aforesaid, but who thereafter appeared in court and took the oath as a grand 
juror in the manner and form required by law.

Mr. Hood's affidavit is corroborated by affidavits of members of the bar, well 
known to the members of this court. We have no doubt that it details the facts, 
and that Mr. Snyder's affidavit, in the particulars in which it seems to differ, 
is to be construed as his construction of the facts.

On the affidavits submitted by the defendant the case is this: The persons 
returned as grand jurors were called and took their proper places. A foreman was 
chosen and sworn in the usual form, standing in the presence of the court and of 
his fellows. Immediately thereafter the deputy clerk intended to administer the 
usual oath to the other jurors, and read over the same to them in their presence 
and hearing. The jurors were there to take the oath and intended to take it. 
This ceremony took place in the presence, and the law presumes, under the 
direction of the learned county judge. It can scarcely be doubted that the 
somewhat scant and hasty observance by the deputy clerk of the usual deliberate 
and solemn forms arrested the attention of the learned presiding judge no less 
than it did that of the experienced members of the bar, whose affidavits are 
presented, and that he concluded, and in effect decided, that the oath was duly 
administered. Granted the presence of the jurors for the purpose of taking the 
oath; the presence of the clerk to administer it; the reading of the oath to the 
jurors by the clerk; no objection by any one; no suggestion of any other or 
different form; the supervising presence and watchfulness of the intelligent 
court, and the presumption is that the statutory requirements were substantially 
observed. The forms, no doubt, suffered a loss of the impressiveness always 
desirable upon such an occasion, but liable to some sacrifice at the hands of 
inexperience. The presiding judge did not think it necessary to interpose either 
at the time or when this motion was made. Upon all the facts we conclude that 
the recital in the indictment, that "the jurors of the People of the State of 
New York, in and for the body of the county of Ulster, then and there being duly 
sworn, affirmed and charged upon their oath and affirmation to inquire for the 
People," etc., has not been impeached.

A witness gave testimony for the defense, tending to show an alibi. The district 
attorney, notwithstanding the defendant's objection, was permitted to ask 
him: "Were you arrested and convicted, while at Clintondale, for an offense or 
crime?" He answered: "I don't know whether I was convicted or not; I was 
arrested and they told me to move out of town, so I moved." It was proper to ask 
him if he had been convicted of crime. (Penal Code, § 714; People v. Noelke, 94 
N. Y., 137.) It was not proper to ask him if he had been arrested. That called 
for a specific act done by others, not pertinent to the present issue, and 
touching which it could not be known that the witness was at fault. (Id., and 
cases there cited; People v. Irving, 95 N. Y., 541.) Part of the question was 
allowable and part not. The objection was to the whole question. If an offer of 
evidence embraces matter not admissible, the whole may be rejected. (Hosley v. 
Black, 28 N. Y., 438; Gardner v. Borden, 34 id., 433, 438.) Where admissible and 
inadmissible evidence is contained in a letter, the letter may be received as to 
the admissible evidence. (Dutchess Co. v. Harding, 49 N. Y., 321.) In a case 
like the one last cited, unless the objection is specifically taken to the 
inadmissible part, it is not error to receive the whole letter. (Day v. Both, 18 
N. Y., 448; Bequa v. Holmes, 16 id., 193.) If part of an answer is admissible 
and part not, the attention of the court must be called by the objection to the 
inadmissible portion, otherwise the objection is invalid. (Wallis v. Randall, 81 
N. Y., 164.) An exception, whether to the admission or exclusion of evidence, is 
not well taken unless the attention of the court was, at the time, fairly called 
to the particular matter, respecting which a different ruling is now claimed to 
have been the exceptant's right. Here the court could well say, the objection is 
overruled because you can prove a conviction. It was then the duty of counsel, 
if he would save his exception, to suggest, but not an arrest.

If, on the other hand, the court had excluded the evidence because an arrest 
cannot be proved, it would have been the duty of the district attorney to 
suggest, but the conviction can be. It is plain that in either case the court 
would have separated the proper from the improper, and it is the office of 
counsel to give the necessary help.

The district attorney, in his address to the jury, commented upon the fact that 
the defendant had not been sworn as follows: "Why has not the defendant been 
sworn? He could tell where he was this night, and" — whereupon the defendant's 
counsel interposed and asked the court to direct the district attorney that he 
must not refer to the fact that the defendant had not been sworn. The court 
remarked: "That is so; I don't think he will do so now." The district attorney 
continued: "Well, gentlemen, that is so; I cannot refer to the fact that Rose 
has not been sworn, if I could, I could say to you that if he took the stand he 
could tell you where he was this night and what he was doing." The defendant's 
counsel again interposed and asked to have the remarks of the district attorney 
stricken out. The court said: "Strike them out." Defendant's counsel then asked 
the court to instruct the jury "that they must disregard the remarks of the 
district attorney in respect to the fact that Rose was not sworn, and that they 
could draw no inference against him from that fact; that they could not consider 
it one way or the other; that it creates no inference of guilt." The court 
remarked: "I do not think the district attorney will go on any further." 
Defendant's counsel said: I except to the refusal of the court."

These facts appear in an affidavit of the defendant's counsel, upon which a 
motion was made, after the verdict and before sentence, for a new trial. The 
motion was denied. The statement in the affidavit was not contradicted, and the 
affidavit and proceedings thereupon are returned as a part of the record 
certified by the presiding judge. We think we ought to consider the exception. 
The district attorney violated the rights of the defendant in commenting to the 
jury upon the significance of his neglect or refusal to testify in his own 
behalf. Section 393, Code of Criminal Procedure, declares that the 
defendant's "neglect or refusal to testify does not create any presumption 
against him." This statutory declaration is not in accord with experience, but 
its practical meaning is that the court and jury must, so far as they can, 
determine his case without prejudice or inference against him, founded upon his 
omission to testify. It was the duty of the court, by proper instruction to the 
jury, to protect the defendant against the prejudice or inference, which the 
district attorney's remarks suggested — certainly upon proper request. The 
matter was of the utmost importance to the defendant, and the request of his 
counsel should have been explicitly granted. As it was, the comments of the 
district attorney and the request of his counsel were disposed of in a manner 
well calculated to impress the jury with the idea that the district attorney was 
only technically wrong but substantially right, and that the request of 
defendant's counsel was of small moment.

The judgment of conviction and sentence should be reversed, and new trial 
granted.

Learned, P. J., and Ingalls, J., concurred.

Judgment and conviction reversed, new trial granted.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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