Avila v. United States

• Citation: 76 F.2d 39
• Decision Date: 04 March 1935
• Docket Number: No. 7647.,7647.
• Parties: AVILA v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

76 F.2d 39 (1935)

AVILA v. UNITED STATES.

No. 7647.

Circuit Court of Appeals, Ninth Circuit.

March 4, 1935.

James E. Fenton, of Los Angeles, Cal., for appellant.

Peirson M. Hall, U. S. Atty., and Robert Winfield Daniels, Asst. U. S. Atty., both of Los Angeles, Cal.

Before WILBUR and GARRECHT, Circuit Judges, and CAVANAH, District Judge.

CAVANAH, District Judge.

The grand jury for the Southern District of California, Central Division, returned an indictment against appellant charging him with the crime of murder, on property within the exclusive jurisdiction of the United States. He was convicted by a jury of murder in the first degree, without capital punishment, and sentenced to life imprisonment. He brings this appeal and urges error in the procedure adopted by the court in the impaneling of the jury, wherein he was deprived of the right to exercise twenty peremptory challenges, as granted to him by statute, and also contends that the evidence was insufficient to sustain the conviction.

The record shows that the case came on for trial on December 14, 1933, when the impaneling of the jury began. Appellant having exercised five peremptory challenges, the panel was exhausted, and there then remained in the box eleven jurors who were examined and passed for cause, whereupon the court then required appellant, if he desired to exercise any further peremptory challenges, to exercise the same upon and as to the eleven jurors then remaining in the box; otherwise his right to exercise peremptory challenges to any of the eleven jurors would be waived and he would be limited and confined in making further peremptory challenges to new jurors called to fill the box. He objected and excepted to the ruling of the court requiring him to exercise any further peremptory challenges to the eleven jurors until the box was filled. Under protest, he then exercised peremptory challenges to seven of the eleven jurors, leaving only four jurors in the box. He then moved the court that he be allowed to reserve the right to make further peremptory challenges to any of the remaining four jurors, which was denied and excepted to. The box was then filled and appellant then exercised seven additional peremptory challenges to the jurors in the box, other than the four jurors referred to, and the box was then filled. Appellant, having theretofore exercised only nineteen peremptory challenges in all, moved the court that he be allowed to exercise two peremptory challenges to two of the four jurors — Hugh McFarland and A. A. Moody — he thinking that he had left two peremptory challenges when he only had one, before the jury was sworn to try the case. This request was denied by the court for the reason then given that appellant had theretofore waived his right to exercise a peremptory challenge to any of the four jurors named. An exception was then taken, and the trial was had.

The crucial question involved is whether the appellant, as shown by the record, was accorded his right of peremptory challenges contemplated by the federal statute, which provides that upon the trial of a criminal offense in cases of treason or capital offenses, the defendant shall be entitled to twenty and the United States to six peremptory challenges. Rev. St. § 819, now Jud. Code § 287, 28 USCA § 424. Was he denied any right to which he was entitled by the method of selecting the jury? The manner and method of exercising the right of peremptory challenges on the part of the accused, in the courts of the United States, is what is involved here. To arbitrarily deny him the right of the peremptory challenges granted by the statute is of vital importance to him and is to bar him of the principal matter concerning his trial. It runs counter to the principle of being vital to the integrity and maintenance of the system of a constitutional right of trial by jury.

It is evident from the course pursued that appellant was not allowed the right of peremptory challenges given by the statute, as he had only challenged in all nineteen of the twenty, and had requested to be allowed to exercise the remaining challenge. With this result he lost the benefit of his right to exercise twenty peremptory challenges and was deprived of trial by a fair and impartial jury.

It is no answer to insist that appellant had waived his right to exercise his peremptory challenges to the four jurors referred to, because he repeatedly requested to be permitted to apply challenges to the four jurors when the box was not filled and when he had not accepted the jury.

But it is asserted by the government that appellant waived his right to exercise his full number of peremptory challenges under rule 51 of the court, when the court demanded, over his objection, that he exercise his peremptory challenges to the eleven jurors in the box and when he afterwards exercised seven challenges, leaving four jurors in the box. Rule 51 reads: "Unless otherwise stipulated by the parties, in both civil and criminal cases, juries shall be empaneled as follows: The box shall be filled and examination on voir dire had and challenges for cause taken and determined. Peremptory challenges shall then be exercised by plaintiff and defendant alternately. The box shall be filled from time to time, in the discretion of the Court. After all peremptories have been taken, or the parties satisfied, the jury shall then be sworn as a body to try the cause. In felony cases the defendant shall exercise two challenges to the Government's one until the peremptories remaining are equal, then they shall alternate."

This rule clearly provides that: "The box shall be filled and examination on voir dire had and challenges for cause taken and determined. Peremptory challenges shall then be exercised by plaintiff and defendant alternately. The box shall be filled from time to time, in the discretion of the court. After all peremptories have been taken, or the parties satisfied, the jury shall then be sworn as a body to try the cause." It shows that the jury box must be filled and all jurors examined as to any challenges for cause before any peremptory challenges are to be exercised. It further requires that the box shall be filled from time to time and does not permit the exercising of peremptory challenges until that is done, and the jury shall not be sworn to try the cause until after all peremptory challenges have been taken. The words "in the discretion of the court" do not, when the entire rule is considered, give to the court discretion to require challenges to be exercised before the box is filled, as that discretion relates to the filling of the box and not to requiring the exercise of peremptory challenges before the box is filled. Manifestly, the court did not follow the procedure outlined by the rule. Nor does the rule permit a ruling that appellant had waived his right to peremptory challenges to the jury, when the box was not filled at the time he was called upon to challenge. Even if the construction placed on the rule by the government be correct, and the court had the discretion of pursuing the method adopted, it would seem that if a wise and sound discretion had been exercised, and the court had given recognition to the general law applicable to the practice in the federal courts, it would not have deprived appellant of his statutory right to twenty peremptory challenges.

Having disposed of the effect of the rule of the court, we go further and recognize the procedure and method to be pursued in impaneling and challenging jurors in the federal courts to now be, in the absence of a rule of court or a rule recognizing the right of a defendant and the government to begin exercising their peremptory challenges after the box is filled, that of the common-law procedure in criminal cases, as modified and changed by the constitution and statutes of the state in which the trial is held, apply as far as the same is not inconsistent with the Constitution and laws of the United States. This thought is carried out in Rev. St. § 722, 28 USCA § 729, where it is provided that: "The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of chapter 3 of Title 8, and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the Constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty."

In United States v. Eagan (C. C.) 30 F. 608, 610, after referring to this section of the statute, the court said: "Mr. Conkling, in his treatise on the practice of the United States courts, insists that there are cogent reasons for holding that this refers, not merely to the mere qualifications as to citizenship, age, residence, etc., but that it extends to all the proceedings for challenging and determining the qualifications of jurors, and to that extent incorporates the laws of the state. Clearly, with these two sections of the federal statute we have the right, if we are not bound in every case in which there is no express provision of the federal statute, to apply the provisions and the laws of the state in which the court is held." Lewis v. United States, 146 U. S. 370, 376, 13 S. Ct. 136, 36 L. Ed. 1011; Howard v. United States (C. C. A.) 75 F. 986, 34 L. R. A. 509; ...