and 106 New York State Reporter

is designed to protect against that other prejudice which is the more dangerous because unconscious and not capable of discovery. As was said by Cowan, J., sitting with Nelson, Ĉ. J., in People v. Webb, supra, at page 184:

"To make such an experiment essential would seem to be quite dangerous. It [the trial] is the very thing which the law seeks to avoid when it is seen that the party may, and probably will, be drawn into a trial by a jury, who, under an influence of which they may themselves be hardly conscious, an influence which perhaps no human sagacity can detect,-may pronounce a verdict against him, and conclude his rights forever. Above all would it be dangerous to require that he should risk his trial by a panel selected from a community already sought to be influenced by the course of the press; that very panel being personally appealed to by the opposite party's own press, or one put in motion by him, or by some other person."

This language was quoted with approval by the court of appeals in People v. McLaughlin, 150 N. Y. 365, 379, 44 N. E. 1017, 1021, in which case the court further said on this point:

"That jurors are sometimes prejudiced, and courts may be unconsciously biased to the injury of one of the parties, must be admitted. Prejudice is often an insuperable barrier to the fair and impartial administration of the law. Its influence is subtle, insidious, and often unconsciously warps the judgment and blinds the intelligence of those surrounded by its atmosphere. But its presence can usually be discovered only from the circumstances and conditions which produce it."

In reaching my conclusion I have not overlooked any of the arguments advanced by the district attorney against granting the application. One of these arguments is that the refusal of the grand jury recently to indict a sergeant of police on the charge of murder in a case where the district attorney felt the evidence demanded an indictment is "conclusive evidence of an entire lack of passion or sentiment in the community, or of any tendency on the part of the representative members thereof to deny a police official accused of crime the benefit of any reasonable doubt." To my mind, this circumstance is wholly immaterial on the point in issue. There is no public agitation on the subject of police murders, or police burglaries, or any other alleged offense save only the one of accepting bribes to leave vicious resorts unmolested. Another of these arguments is that the ease with which a jury, claimed to have been unbiased, was obtained on the Bissert trial, shows that the same can be done in this case. The answer of the defendant's counsel to this contention is that questions tending to show bias were excluded in that case, such as the following:

"Q. Have you any prejudice against the police force of the city of New York? Q. Do you know an association or institution of this city known as the 'City Vigilance League'? Q. Do you know an association or institution of this city known as the 'Good Government Club'? Q. Do you know of an association-a voluntary association-of this city of some gentlemen commonly known as the 'Committee of Fifteen'? Q. Have you any prejudice against the police department as a department? Q. Have you any prejudice, or has any prejudice been engendered in your mind by your reading, or by what you have heard against Captain Diamond of the officers in his precinct? Q. Are you a member of the Committee of Fifteen? Q. Did you contribute to or support the so-called Committee of Fifteen? Q. If it should appear in this case that this prosecution has been instigated against this individual defendant in order to secure and bring about political prejudice

against the police department, would that operate to prejudice your mind against this defendant?"

But, even if it appeared in the Bissert trial that inquiries had been allowed which were calculated to disclose facts from which bias could be inferred, and no such facts had been disclosed, then it would only be demonstrated that a jury could be obtained that was apparently free from bias. But this, under the principle stated in People v. McLaughlin, supra, and People v. Webb, supra, is the precise thing to be guarded against. The bias which is so dangerous, in the language of the Webb Case, is that "of which they [who are under its influence] may themselves be hardly conscious," and "which no human sagacity can detect," and, in the language of the McLaughlin Case, which "can usually be discovered only from the circumstances and conditions which produce it." If, therefore, there exist at the present time in this community, as I am satisfied there do,-"the circumstances and conditions which produce" bias, and which, moreover, are the only sure means of discovering its presence, it is obvious that such presence could not be detected by the ordinary tests, and that the failure of such tests would show not that the bias does not exist, but only that it is of that subtle and insidious character which evades such tests, and unconsciously warps the sentiment and judgment of those in its atmosphere. As has been so often said by judges before, under similar circumstances, of other localities (see People v. Railroad Co., supra, at page 113; Budge v. Northam, supra, at page 254), the granting of this application for a change of venue involves not the slightest reflection upon the general impartiality of the citizens of this county. This ancient privilege of a defendant, which has been preserved and defined by statute, is one based upon centuries of experience of human nature as it is found to act under certain conditions. This provision no more reflects upon the integrity and honesty of people than does any other safeguard of the law. It simply recognizes human nature as it exists, and makes provision accordingly. Just as the statute itself is no reflection, so the application of it, and action under it when the facts warrant, are no reflection upon the community. Whether guilty or innocent, the defendant is entitled to be tried in a vicinage not charged with the strong popular sentiment, whether well or ill founded, which here exists. As was said by the court in the McLaughlin Case, at page 375, 150 N. Y., and page 1019, 44 N. E.:

"The right of every person accused of crime to have a fair and impartial trial before an unbiased court and an unprejudiced jury is a fundamental principle of criminal jurisprudence. For the protection of persons accused of crime, the law, as a safeguard against local prejudice, has benignly provided this remedy."

There is one other consideration on this branch of the case which I am led to advert to by the following pertinent observation made by S. B. Strong, J., in People v. Baker, 3 Parker, Cr. R. 181, 195:

"During an experience of many years I do not remember a verdict in a criminal case in opposition to a strong public sentiment previously entertained and generally known. If that should be erroneous,-and it sometimes is, it will probably lead to an unjust verdict. If there should be a divided

and 106 New York State Reporter

sentiment, it would result in a disagreement, and the trial thus prove abortive."

So, if the trial of this defendant should take place in this county, the jury might be made up of men who had prejudged the case against him or in his favor, or partly of each class, and the result might be an unjust conviction, or an unwarranted acquittal, or a disagreement. If the defendant's attorney intends by this motion, the language of which is quoted above, to move under subdivision 1 of section 344, Code Cr. Proc., as well as under subdivision 2, it is plain from an examination of the section that he cannot have a decision in his favor under both subdivisions. Subdivision I provides for a removal to "a term of the supreme court held in the same county"; subdivision 2 for a removal to "a term of the supreme court held in another county." It is true that the ground in the one case is "for good cause shown," while that in the other is for the specific ground that "a fair and impartial trial cannot be had," and that a defendant whose motion on the latter ground has been denied would still be entitled to a decision on the former and more general ground. But, as I grant this motion on the ground stated in subdivision 2, there is no necessity for any discussion of the case under subdivision 1. As above stated, I am satisfied that the conditions exist in this county, where the indictment is pending, which are contemplated by the statute under which this motion is made, and therefore that the defendant is entitled to a trial in some other county, where similar conditions do not exist. The place of trial will be designated in the order to be entered hereon. If the parties agree upon any county, I shall desig nate it; if not, I shall make a selection after hearing both sides upon the settlement of the order on two days' notice.

(64 App. Div. 375.)

TOBIN v. SCANNELL, Fire Com'r.

(Supreme Court, Appellate Division, Second Department. October 4, 1901.) MUNICIPAL CORPORATIONS-FIRE DEPARTMENT-PENSIONS-MANDAMUS.

Brooklyn City Charter, tit. 13, § 15 (Laws 1888, c. 583, as amended by Laws 1889, c. 153), and Greater New York Charter (Laws 1897, c. 378), provide that, if any member of the fire department dies after 10 years' continuous service, or after retirement from the actual service, his widow may be placed on the pension roll so long as she remains unmarried, and that the commissioner shall determine the circumstance thereof, but the payment of such pension shall not be obligatory on him, and that he, in his discretion, for proper cause, after investigation, may at any time order such pension, or any part of it, to cease. Held, that on application of a widow of a deceased fireman, stating the commissioner's refusal to place her name on the rolls, and setting forth facts prima facie entitling her to be placed on the list, in the absence of such circumstances, lawfully determined by the commissioner, as render it improper for her to receive a pension, an alternative writ of mandamus may issue requiring the commissioner to determine her claim, and place her name on the pension list, or to show cause to the contrary. Goodrich, P. J., dissenting.

Appeal from special term, Kings county.

against the police department, would that operate to prejudice your mind against this defendant?"

But, even if it appeared in the Bissert trial that inquiries had been allowed which were calculated to disclose facts from which bias could be inferred, and no such facts had been disclosed, then it would only be demonstrated that a jury could be obtained that was apparently free from bias. But this, under the principle stated in People v. McLaughlin, supra, and People v. Webb, supra, is the precise thing to be guarded against. The bias which is so dangerous, in the language of the Webb Case, is that "of which they [who are under its influence] may themselves be hardly conscious," and "which no human sagacity can detect," and, in the language of the McLaughlin Case, which "can usually be discovered only from the circumstances and conditions which produce it." If, therefore, there exist at the present time in this community, as I am satisfied there do,-"the circumstances and conditions which produce" bias, and which, moreover, are the only sure means of discovering its presence, it is obvious that such presence could not be detected by the ordinary tests, and that the failure of such tests would show not that the bias does not exist, but only that it is of that subtle and insidious character which evades such tests, and unconsciously warps the sentiment and judgment of those in its atmosphere. As has been so often said by judges before, under similar circumstances, of other localities (see People v. Railroad Co., supra, at page 113; Budge v. Northam, supra, at page 254), the granting of this application for a change of venue involves not the slightest reflection upon the general impartiality of the citizens of this county. This ancient privilege of a defendant, which has been preserved and defined by statute, is one based upon centuries of experience of human nature as it is found to act under certain conditions. This provision no more reflects upon the integrity and honesty of people than does any other safeguard of the law. It simply recognizes human nature as it exists, and makes provision accordingly. Just as the statute itself is no reflection, so the application of it, and action under it when the facts warrant, are no reflection upon the community. Whether guilty or innocent, the defendant is entitled to be tried in a vicinage not charged with the strong popular sentiment, whether well or ill founded, which here exists. As was said by the court in the McLaughlin Case, at page 375, 150 N. Y., and page 1019, 44 N. E.:

"The right of every person accused of crime to have a fair and impartial trial before an unbiased court and an unprejudiced jury is a fundamental principle of criminal jurisprudence. For the protection of persons accused of crime, the law, as a safeguard against local prejudice, has benignly provided this remedy."

There is one other consideration on this branch of the case which I am led to advert to by the following pertinent observation made by S. B. Strong, J., in People v. Baker, 3 Parker, Cr. R. 181, 195:

"During an experience of many years I do not remember a verdict in a criminal case in opposition to a strong public sentiment previously entertained and generally known. If that should be erroneous,-and it sometimes is, it will probably lead to an unjust verdict. If there should be a divided

and 106 New York State Reporter

sentiment, it would result in a disagreement, and the trial thus prove abortive."

So, if the trial of this defendant should take place in this county, the jury might be made up of men who had prejudged the case against him or in his favor, or partly of each class, and the result might be an unjust conviction, or an unwarranted acquittal, or a disagreement. If the defendant's attorney intends by this motion, the language of which is quoted above, to move under subdivision 1 of section 344, Code Cr. Proc., as well as under subdivision 2, it is plain from an examination of the section that he cannot have a decision in his favor under both subdivisions. Subdivision I provides for a removal to "a term of the supreme court held in the same county"; subdivision 2 for a removal to "a term of the supreme court held in another county." It is true that the ground in the one case is "for good cause shown," while that in the other is for the specific ground that "a fair and impartial trial cannot be had," and that a defendant whose motion on the latter ground has been denied would still be entitled to a decision on the former and more general ground. But, as I grant this motion on the ground stated in subdivision 2, there is no necessity for any discussion of the case under subdivision 1. As above stated, I am satisfied that the conditions exist in this county, where the indictment is pending, which are contemplated by the statute under which this motion is made, and therefore that the defendant is entitled to a trial in some other county, where similar conditions do not exist. The place of trial will be designated in the order to be entered hereon. If the parties agree upon any county, I shall designate it; if not, I shall make a selection after hearing both sides upon the settlement of the order on two days' notice.

(64 App. Div. 375.)

TOBIN V. SCANNELL, Fire Com'r.

(Supreme Court, Appellate Division, Second Department. October 4, 1901.) MUNICIPAL CORPORATIONS-FIRE DEPARTMENT-PENSIONS-MANDAMUS.

Brooklyn City Charter, tit. 13, § 15 (Laws 1888, c. 583, as amended by Laws 1889, c. 153), and Greater New York Charter (Laws 1897, c. 378), provide that, if any member of the fire department dies after 10 years' continuous service, or after retirement from the actual service, his widow may be placed on the pension roll so long as she remains unmarried, and that the commissioner shall determine the circumstance thereof, but the payment of such pension shall not be obligatory on him, and that he, in his discretion, for proper cause, after investigation, may at any time order such pension, or any part of it, to cease. Held, that on application of a widow of a deceased fireman, stating the commissioner's refusal to place her name on the rolls, and setting forth facts prima facie entitling her to be placed on the list, in the absence of such circumstances, lawfully determined by the commissioner, as render it improper for her to receive a pension, an alternative writ of mandamus may issue requiring the commissioner to determine her claim, and place her name on the pension list, or to show cause to the contrary. Goodrich, P. J., dissenting.

Appeal from special term, Kings county.