Apgar v. United States

Decision Date15 January 1919
Docket Number3204.
Citation255 F. 16
PartiesAPGAR v. UNITED STATES.
CourtU.S. Court of Appeals — Fifth Circuit

Rehearing Denied March 15, 1919.

John C Theus, of Monroe, La., and J. M. Foster, Frank J. Looney, and W. A. Wilkinson, all of Shreveport, La., for plaintiff in error.

Joseph Moore, U.S. Atty., and J. H. Jackson, Asst. U.S. Atty., both of Shreveport, La.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

WALKER Circuit Judge.

On the 21st day of March, 1917, the Senior Circuit Judge of the Fifth judicial circuit designated 'the Honorable Rufus E Foster, Judge of the Eastern District of Louisiana, to hold the District Court in the Western District of Louisiana in the place and in aid of the judge thereof, and therein to have the powers provided in section 14 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1089 (Comp. St. Sec 981)). ' The indictment against the plaintiff in error (who will be referred to as the defendant) was filed in the Monroe division of the Western district of Louisiana on May 31, 1917. On the 1st day of October, 1917, the defendant filed a plea in abatement to the indictment and a challenge to the array of the panel of petit jurors drawn and served for the October, 1917, term of court at Monroe; both of which were overruled.

The ground relied on in argument against the correctness of the court's action in overruling the plea in abatement is that the indictment was subject to be abated because an order made by Judge Foster on May 14, 1917, appointing George G. Weaks jury commissioner for the Western district of Louisiana, Monroe division, was illegal and invalid for the reason that Judge Foster, at the time the order was made, was absent from the Western district of Louisiana. The ground mentioned was not stated in the plea in abatement. Furthermore, the record does not show that it was proved or admitted that Judge Foster was absent from the Western district of Louisiana when he made the order appointing the jury commissioner. There is a recital in the bill of exceptions of the admission of the truth of the allegations of specified filed pleas and motions. The record does not contain any filed plea or motion which alleges that Judge Foster was absent from the Western district of Louisiana when he made the order in question. Assuming, without conceding, that the indictment was subject to be abated or quashed on the ground mentioned, in the absence of proof or admission of the existence of such ground, it cannot be held that the court erred in refusing to abate or quash the indictment on that ground.

The ground stated in the above-mentioned challenge or motion to quash the panel of petit jurors was the following:

'That the order of the Honorable Rufus E. Foster, District Judge of the Eastern District of Louisiana, directing that said panel of petit jurors be drawn, is illegal and invalid for the reason that the said Honorable Rufus E. Foster, judge as aforesaid, gave and executed said order while without the jurisdiction of the Western District of Louisiana and while within and discharging the duties and functions of United States District Judge for the Eastern District of Louisiana.' The truth of this allegation was admitted. The record made up for this court does not contain the order referred to. The attack on the panel is based on the circumstance that Judge Foster was in the district of which he is the judge when he made the order directing the drawing of the panel. A statute prescribes how grand and petit jurors shall be drawn. Judicial Code, Sec. 276 (Comp. St. Sec. 1253). Another statute forbids the summoning of a grand jury to attend any district court unless the issue of a venire therefor is ordered by the judge. Judicial Code, Sec. 284 (Comp. St. Sec. 1261). There is no statute making such an order a prerequisite to the validity of a drawing of the names of those to be summoned to serve as petit jurors. The panel of petit jurors here in question was drawn for a regular term of the Monroe division of the court. If such action by the jury commission is taken without having been ordered, it may be subject to be disapproved by the judge or the court; but, in the absence of any law requiring an order for the drawing of petit jurors, such drawing may be sanctioned as well after as before it occurred. It is enough that the court acquiesced in the drawing of petit jurors for the term, whether a valid order was or was not made before the drawing occurred. Breese v. United States, 203 F. 824, 828, 122 C.C.A. 142. In the absence of a rule or order governing the drawing of jurors for the trial of cases in the courts of the United States, that matter is in the control of those courts, subject only to the restrictions Congress has prescribed, and, also, to such limitations as are recognized by the settled principles of criminal law to be essential in securing impartial juries for the trial of offenses. Pointer v. United States, 151 U.S. 396, 14 Sup.Ct. 410, 38 L.Ed. 208.

We are not to be understood as concurring in the contention that the order in question was invalid because it was made by Judge Foster 'while within and discharging the duties and functions of United States District Judge for the Eastern District of Louisiana. ' An effect of the order designating him 'to hold the District Court in the Western District of Louisiana in the place and in aid of the judge thereof, and therein to have the powers provided in section 14 of the Judicial Code,' was to add to the territory in which he was required to exercise the functions of a District Judge. Judicial Code, Sec....

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8 cases
  • City of Greenwood v. Humphrey & Co., Inc
    • United States
    • United States State Supreme Court of Mississippi
    • May 23, 1938
    ...of the order remanding this cause to the state court. Cheesman v. Hart, 42 F. 98; In re American Hoke Furnishers' Corp., 296 F. 605; Apgar v. U.S. 255 F. 16; U.S.C. A., sec. 13; 33 C. J. 966, sec. 92; Harlan v. McGourin, 180 F. 119, 54 L.Ed. 1101; U.S.C. A., sec. 731. The order is valid on ......
  • In re Associated Gas & Electric Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 4, 1936
    ...708, 33 L. Ed. 123, notice of appeal; Ex parte Harlan, 180 F. 119 (C.C.N.D.Fla.), order for drawing grand jury. See Apgar v. United States, 255 F. 16, 18 (C.C.A.5), order for drawing petit jurors; United States v. Goldstein, 271 F. 838 (C.C.A.8), expunging certain findings in a decree. In H......
  • U.S. v. Strother, 77-1432
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 9, 1978
    ...dismissed, 266 U.S. 640, 45 S.Ct. 122, 69 L.Ed. 483 (1924); United States v. Goldstein, 271 F. 838 (8th Cir. 1921), and Apgar v. United States, 255 F. 16 (5th Cir. 1919), cert. denied, 250 U.S. 642, 39 S.Ct. 492, 63 L.Ed. 1185 (1919), as supporting the proposition that, "in order to prevent......
  • Williams v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 1, 1921
    ...... system, and are designed to secure and preserve a fair and. impartial trial, is not a mere irregularity, and is ground. for challenging the array, even though it does not. affirmatively appear that any injury has resulted. therefrom.'. . . . See,. also, Apgar v. United States, 255 F. 16, 166 C.C.A. 344. . . We are. of the opinion that the fact that the order of the court. below directing the clerk of the court and the jury. commissioner thereof to place in the jury box the number of. names as required by the. [275 F. 133] . statute ......
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