Opinion of the Court, per VANN, J.

[Vol. 196.

ant discussed but two questions before us and her brief contains no allusion to any other.

1. It is insisted that the challenge of the defendant to the juror John E. Howe was improperly overruled. The juror was drawn from a panel of "Special Jurors," pursuant to chapter 602 of the Laws of 1901. That act gives the parties the same number of peremptory challenges and the same challenges for cause as upon a trial with an ordinary jury, but, as it further provides, "The rulings of the trial court, however, in admitting or excluding evidence upon the trial of any challenge for actual bias shall not be the subject of exception. Such rulings and the allowance or disallowance of the challenge shall be final." (Section 8.)

The defendant used but six of his thirty peremptory challenges.

Mr. Howe, when sworn on his voir dire, testified, in substance, that he had never known the deceased and was not acquainted with the counsel on either side; that he had not heard of the case except through the newspapers, and had read them but little and no full account of the matter; that he had not read the papers recently and never with much interest and had conversed with no one about the case; that he had formed no opinion as to the guilt or innocence of the defendant, but had what he called a prejudice derived from the few facts he had gleaned from the newspapers; that he believed he could lay it aside, enter the jury box with an open mind and render a fair and impartial verdict, entirely on the evidence and the charge of the court, but was not positive that he could do so; that he would be guided in all matters by the charge and he would try to prevent, and he believed he could prevent, what he called his prejudice from influencing his verdict. It did not appear whether the so-called prejudice was general or specific, in favor of or against the accused, or against the crime of murder in the abstract. The trial court evidently concluded that the prejudice was but an opinion which would not influence the verdict, and we think he was right. An opinion does not now disqualify a

N. Y. Rep.]

Opinion of the Court, per VANN, J.

juror provided he declares on oath, as Mr. Howe did, "that he believes such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied, that he does not entertain such a present opinion or impression as would influence his verdict." (Code Cr. Pro. sec. 376, subd. 2.) It is sufficient under the statute now in force if the juror believes that his opinion will not influence his verdict, etc., and it is not essential that he should be positive on the subject. Aside from the technical answers, we think no error was committed by the court in overruling the challenge to this juror, even when it is considered on the merits.

2. It is further claimed that it was error to exclude the testimony of the witness Garabedian as to what he observed with respect to the defendant's conduct.

This witness testified that he was twenty-five years of age and a cousin of the defendant; that he saw the defendant in the year 1895, and remembered a time in that year when he came to his house and they had a conversation. He was then asked what the defendant said to him and the district attorney objected upon the ground that enough foundation had not been laid at the present time for a conversation had twelve years ago. He added that it might be proper at some stage of the case but was not proper at this stage. The court sustained the objection and no exception was taken. The witness further testified that after the defendant came to America he used to see him frequently and that they slept together five years ago. He was then asked what, if any thing, he observed with respect to whether he slept well or not. Objection was made on the ground that it was incompetent and immaterial whether the defendant five years ago slept well. The objection was sustained and the defendant excepted. This witness was also asked what, if any thing, he observed in the defendant's conduct that attracted his attention. This was excluded as too indefinite and too remote, and an exception was taken. Afterward the witness was allowed to state whatever he observed about the defendant at any

time, when he was asleep or awake, what he did and what he said, and everything that could have any bearing on his mental condition.

As the evidence subsequently given by the witness, with no intervening delay, embraced all that the questions objected to called for, including every detail, the error, if any, was cured. This is too obvious to require discussion.

While these are the only rulings that we were asked to consider, still, in accordance with our custom in capital cases, we have carefully examined all the others, whether excepted to or not, and we find none of which defendant has a legal right to complain.

I recommend that the judgment be affirmed.

CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT and CHASE, JJ., concur; GRAY and WILLARD BARTLETT, JJ., absent. Judgment of conviction affirmed.

SALLIE COCHRAN, an Infant, by AUGUSTA J. BAILEY, Her Guardian ad Litem, Respondent, v. RICHARD COCHRAN et al., Appellants.

Husband and wife - marriage of minors-right of infant husband to his earnings as against his father action for alienation

On the marriage of minors certain marital rights and obligations accrue which are at variance with substantial pre-existing parental rights, and the only warrantable manner in which a conflict between them can be avoided is by the subordination of the latter to the former.

The right of an infant husband to his earnings as against his father, so far at least as is necessary for the support of his family, necessarily results from the husband's duty to support the wife.

In an action brought by a wife against the parents of her husband to recover damages for the alienation of the husband's affections, she was allowed to give testimony of statements made by her husband with reference to the hostile attitude and disposition of his parents. Held, that it was incumbent on the wife to prove the unlawful conduct of defendants by competent testimony and it was not proper to give evidence of her husband's declarations on the subject.

Cochran v. Cochran, 127 App. Div. 319, reversed.

(Argued June 15, 1909; decided October 19, 1909.)

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Opinion of the Court, per HISCOCK, J.

APPEAL from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 2, 1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial.

The nature of the action and the facts, so far as material, are stated in the opinion.

George Ryall for appellants. A minor son is not emanci pated by marriage from the care, custody and control of his father when the marriage is without the consent and contrary to the expressed wishes of the father, nor is the father thereby deprived of the right to the earnings of the son. (Matter of Whittaker, 4 Johns. Ch. 378; Sanford v. McLean, 3 Paige, 117; Bool v. Mix, 17 Wend. 119; Ryerss v. Wheeler, 25 Wend. 434; Comm. v. Graham, 157 Mass.73; Pollock v. Pollock, 9 Misc. Rep. 85.) The admission in evidence of statements made by the son, in the absence of the defendants, before and after the marriage, concerning the sentiments, hostility and probable action of the defendants on learning of the marriage, was erroneous. (Pollock v. Pollock, 9 Misc. Rep. 83; Billings v. Albright, 66 App. Div. 245; Eldredge v. Eldredge, 79 Hun, 511; Manwarren v. Mason, 79 Hun, 592; Schultz v. U. R. Co., 181 N. Y. 33; Hall v. Karnest, 36 Barb. 591.)

1. R. Oeland and G. Burchard Smith for respondent. The evidence complained of by appellants was admissible as part of the res gesta and its admission was not error. (Billings v. Albright, 66 App. Div. 239; Baker v. Baker, 16 Abb. [N. C.] 293; Remsen v. Hay, 24 Wkly. Dig. 443.) The reception of such testimony, if error, was harmless. (Gates v. Bowers, 169 N. Y. 14; Foote v. Beecher, 78 N. Y. 155.)

HISCOCK, J. The plaintiff and defendant's son, in September, 1904, when both were only eighteen years of age, became married. The marriage was a clandestine and childish one,

Opinion of the Court, per HISCOCK, J.

[Vol. 196.

which disclosed no reasonable probability of happily and successfully surviving the strain of actual experience, and was one which any sensible parent solicitous for the welfare of his child would have been justified in preventing by any available means within his lawful reach. The parties did not live together, the boy contributed nothing towards the support of the girl, and in a short time and before cohabitation had increased the undesirable possibilities of their foolish misadventure the husband left the plaintiff, and this action was brought to recover from the defendants, as the alleged promoters of his abandonment, the damages supposed to have been caused thereby.

While there is nothing but imagination or conjecture to connect the defendant Augusta Cochran with the not unnatural sequel, there probably was sufficient evidence to authorize the jury to find that the other defendant, the father, did without what could be regarded as legal justification induce and procure the son permanently to leave his wife, and that such conduct was unlawful and entitled the plaintiff to recover damages. These were assessed by the jury at very substantial figures.

Before proceeding to point out errors in one branch of the case which require a new trial, it seems desirable to refer very briefly to certain rights and duties of infant husband and wife which affect the measure of damages in such an action as this and concerning which some confusion seemed to prevail on the trial.

The trial court charged that the plaintiff was entitled to the society of her husband, and also to be supported by him. But it likewise charged that the father was entitled to his custody, services and obedience until he became of age, thus apparently recognizing the co-existence of conflicting rights. The jury also were instructed "they (the plaintiff and her husband) had the right to live together, even though the father had the right to the young man's wages."

There is no doubt that on the marriage of minors certain marital rights and obligations accrue which are at variance with substantial pre-existing parental rights, and the only