The Code of Criminal Procedure provides that the defendant has the same number of challenges in a court of special sessions as are allowed on the trial of an indictment for a misdemeanor (Code, § 707); and § 363 provides that a challenge to the panel must be taken before the jurors are sworn, and must be in writing, specifying the facts constituting the ground of challenge. This appears to have been entirely omitted by the defendant. It would seem, therefore, that the irregularities in obtaining this jury were waived by the defendant, and he cannot avail himself of them on this appeal. In Pierson v. The People, 79 N. Y. 429, it was held that the prisoner on trial under an indictment for murder, could waive any irregularity in procuring the jury, and that he might even waive a constitutional right, and in the absence of an objection and exception he is deemed to have waived such irregularity. But it seems that a mere irregularity in procuring a jury or in the organization of a jury is not ground for the reversal of a conviction unless it appears that the defendant was prejudiced by the same. In Cox v. The People, 80 N. Y. 511, the court says: "It is well settled that mere irregularities in the drawing of grand or petit jurors, is not ground for reversing a conviction unless it appears that they operated to the prejudice of the prisoner." The evidence in this case fully sustains the charges in the information, examination and warrant, of the sale by the defendant without a license of lager beer which was by the evidence shown to be intoxicating liquor, and, therefore, fully justified the verdict and judgment. Judgment of the court of sessions and of the special sessions must be affirmed. Supreme Court-General Term—First Department. January, 1894. PEOPLE v. MORRIS SPIEGEL. (56 St. Rep. 727; 75 Hun, 161.) 1. APPEAL-OBJECTION. The mere fact that, during the progress of a long trial, improper or incompetent evidence is admitted, to which the attention of the trial judge has not been called, affords no reason for disturbing the judgment. 2. CRIMINAL LAW-INDICTMENT. The indictment, in this case, was held to state sufficient facts to constitute the crime defined by § 379 of the Penal Code. 3. JUROR-GENERAL INCOMPETENCY. The discretionary right of the court to reject a juror for general incompetency was upheld under the facts of this case. 4. EVIDENCE-IRRESPONSIVE. Striking out evidence as irresponsive is the exercise of the discretion of the trial court. 5. SAME. Where an answer is in part competent, it is not error to refuse to strike out the whole answer on the ground merely that it is irresponsive. 6. APPEAL-CHARGE. An instruction that, if the jury are convinced, beyond a reasonable doubt, of the guilt of the defendant, they may convict, no matter what opinion they have as to the testimony of a certain named witness, is not erroneous. 7. SAME. Where the proofs of loss furnished are, by their terms, necessarily intended to constitute a claim for indemnity, the refusal of a request to charge, based upon the assumption that it had not been intended to present a claim, is correct. 8. SAME. Error cannot be predicated upon a refusal to present additional requests to charge, to which no exception was taken. 9. EVIDENCE-DOCUMENTARY. Where documentary evidence, taken from the prisoner by search warrant, is introduced by the people, a reversal, if no exception has been taken to its admission, is not obligatory. Appeal from judgment of the court of oyer and terminer, convicting the defendant of the crime of presenting and causing to be presented a false and fraudulent claim for the payment of a loss upon a contract of insurance, knowing it to be such. Charles Daniels, for appellant. H. R. B. Stapler, for respondent. VAN BRUNT, P. J.-The statute under which the defendant is indicted is as follows: "A person who, knowing it to be such either presents, or causes to be presented, a false or fraudulent claim or any proof in support of such a claim for the payment of a loss upon a contract of insurance is punishable by imprisonment for not more than five years, or by a fine of not more than $500, or by both such fine and imprisonment." * * * The indictment against defendant, after alleging that the insurance company of North America was a corporation at the times in the indictment mentioned, lawfully doing business in the city, county and state of New York as an insurer; and that Morris Spiegel, the defendant, was at said times doing business in and by the style of A. Blum, Jr.'s, Sons, and that said company had duly insured said Spiegel to the amount of $7,000 against loss or damage by fire upon certain goods, chattels and merchandise belonging to him; further alleged that said Spiegel fraudulently and knowingly did feloniously present and cause to be presented to said insurance company of North America a certain false and fraudulent claim for the payment of a loss upon said contract of insurance wherein and whereby it was claimed by said Spiegel that a loss had been sustained by him by reason of said fire and the destruction and damage occasioned thereby to the goods, chattels and merchandise contained in said building at the time of said fire, and so insured to the extent of $70,221.79; and that said Insurance Company of North America was then justly in debted to said Spiegel by reason of said loss, damage and contract of insurance, in the sum of $7,000, which said claim was then and there false and fraudulent in this, to wit: that a loss had not been sustained by said Spiegel by reason of said fire and the destruction and damage occasioned thereby to the goods, chattels and merchandise contained in said building at the time of said fire, and so insured, as aforesaid, to the extent of $70,221.79, and said insurance company was not then justly indebted to said Spiegel by reason of said loss, damage and contract of insurance in the sum of $7,000, all of which he, said Spiegel, then and there well knew, against the form of the statute in such case made and provided and against the peace of the People of the state of New York and their dignity. To this indictment the defendant pleaded not guilty, and upon the trial before the court of oyer and terminer was convicted by the jury, and from the judgment thereupon entered this appeal is taken. To attempt a statement of the evidence offered or of the facts claimed to have been established upon this trial would be impossible within the limits within which this opinion should be kept, and we will content ourselves with discussing as briefly as may be those points raised upon part of the appellant, which seem to call for discussion and consideration. In the brief submitted upon the argument of this appeal a very large number of errors in the admission of evidence are called to the attention of the court, but in almost every instance no exception was taken to the admission of the evidence, and although such an exception is not necessary in order that the court may reverse a judgment where in its opinion injustice has been done, the mere fact that during the progress of a long trial improper or incompetent evidence may have been admitted, to which the attention of the trial judge has not been called, affords no reason for disturbing the judgment. We shall, therefore, proceed to discuss only those questions which were properly raised, or which seemed to be of sufficient dignity to call for consideration. The first objection raised is that the facts stated in the indictment are not sufficient to constitute a crime. It is urged that the indictment shows that the Insurance Company of North America had made a policy of insurance whereby it insured the defendant to the amount of $7,000 against loss or damage by fire, and that at the time when the appellant presented his proof of loss the contract of insurance was in full force and effect, and that while said contract was in full force and effect, the fire occurred by which certain loss and damage were occasioned to the goods insured; that in order that the indictment should properly charge the presentation by the defendant of a false and fraudulent claim under the statute, it ought to have alleged that a loss had been sustained by the defendant by reason of said fire, and the destruction and damage occasioned thereby to the property insured to the extent of $7.000; and that it was insufficient to allege that the defendant's claim against the insurance company was false and fraudulent because his loss was not $70,221.79; that it was necessary only that his loss should be $7,000 to make his claim an honest and just one. This criticism upon the indictment seems to have been first raised upon this appeal. But that it has no foundation is seen upon a very brief consideration of the allegations of the indictment. The crime charged is fraudulently and knowingly presenting a false and fraudulent claim for the payment of a loss under his contract of insurance by the defendant. The allegation in the indictment is that the defendant presented a claim for the payment of a loss whereby it was claimed by the defendant that he had sustained damage by fire to the extent of $70,221.79, and that the company was justly indebted to him by reason of said loss and contract of insurance in the sum of $7,000. The indictment then alleges that the appellant's loss was not $70,221.79, and that the company was not indebted to him in the sum of $7,000, which facts, if established, proved the presentation of a false and fraudulent claim for the payment of a loss upon a contract of insurance, which was a compliance with the requirements of the statute. The |