How have the courts treated peremptory challenges to jurors in this case?

The appellant also urges that the indictment in this case was insufficient, and for that reason the court ought to have dismissed it, and discharged the defendant. As we have already seen, the indictment contained five counts, four charging the defendant with the crime of bribery, and the fifth with the crime of extortion. Upon the first trial the district attorney elected to present the case to the jury upon the fifth count of the indictment alone. On the second trial, before the case was opened, the defendant's counsel moved to dismiss the indictment, and discharge the defendant, upon the ground that the fifth count was insufficient, because it did not [150 N.Y. 383]contain the essential elements of the crime of extortion, except by reference to the other counts in the indictment, which were for bribery, and which the district attorney had elected to disregard in the presentation of the case to the jury upon the former trial. That motion was denied, upon the ground that the defendant had, in effect, consented to the retention of the bribery counts for the purpose of reference, that the objection was too late, and that there were no deficiencies in the fifth count of the indictment. To this ruling the defendant excepted. While an indictment must contain every essential element of the crime charged, and the charge must be made directly, and not inferentially, yet, under the circumstances of this case, we are of the opinion tthat the court had the right, especially upon the consent of the defendant, to retain the first four counts for the purpose of explaining the reference contained in the fifth count, and that, when retained for that purpose, the indictment was sufficient. The facts in this case are unlike those in the case of People v. Werbin, 27 Hun, 311. In that case the indictment contained three counts, and, after the jury had retired, a nolle prosequi was entered upon the first and second counts, whereupon the counsel for the defendant moved for his discharge, upon the ground that the third count was insufficient. The motion was denied, and an exception taken. The general term held in that case that the effect of the nolle prosequi was to strike out the first and second counts, and they became extinct, and, as the third was insufficient, it was error to deny the defendant's motion. In this case the people elected to submit the case to the jury upon the fifth count alone, and, with the consent of the defendant, the preceding counts were retained for the purpose of reference. On the subsequent trial the court refused to strike out the preceding counts, but retained them to explain the reference contained in the fifth count. We think the court had the power to retain such portion of the preceding counts as was necessary to explain the reference contained in the fifth count, and that it properly [150 N.Y. 384]denied the defendant's motion. We do not, however, pass upon the question whether the retention in the indictment of the counts for bribery entitled the defendant to additional peremptory challenges to jurors, as that question was not raised.