Brookman v. United States

• Decision Date: 12 October 1925
• Docket Number: No. 6690.,6690.
• Citation: 8 F.2d 803
• Parties: BROOKMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

8 F.2d 803 (1925)

BROOKMAN v. UNITED STATES.

No. 6690.

Circuit Court of Appeals, Eighth Circuit.

October 12, 1925.

Donald G. Hughes, of Minneapolis, Minn. (Neil Hughes, of Minneapolis, Minn., on the brief), for plaintiff in error.

Lafayette French, Jr., U. S. Atty., of St. Paul, Minn.

Before SANBORN, LEWIS, and BOOTH, Circuit Judges.

SANBORN, Circuit Judge.

Mr. Brookman was indicted in two counts, tried, convicted, and sentenced to imprisonment in the penitentiary and to pay a fine of $2,000 for each offense, for knowingly dealing in and selling morphine and cocaine without having registered as a dealer or paid the special tax required by section 6287g of the U. S. Compiled Statutes. His counsel make but one complaint of the proceedings at his trial, and that is that the court below overruled his challenge to the entire panel of petit jurors serving at the October term, 1923, when he was tried, because they were selected by Joel M. Dickey, a member of the Republican party, and John R. Donahue, a member of the Democratic party, and not a member of the Farmer-Labor party, which was "the principal political party in the district in which the (trial) court" was held, opposing the Republican party, to which the clerk belonged, as required by section 276 of the Judicial Code (U. S. Compiled Statutes, § 1253). Mr. Donahue had been appointed jury commissioner about 20 years before the year of the trial of this case. He was appointed at a time when the Democratic party was the principal political party opposing that to which the clerk of the court belonged; but, at the last general election before the jurymen were selected for the term of court at which the defendant was tried, the Farmer-Labor party had become the principal political party opposing the Republican party, to which the clerk belonged.

Counsel for the defendant failed to print or file his brief in this court within the time prescribed by subdivision 1 of rule 24, and the United States attorney moved to dismiss the case on that ground. But the attorney for the defendant, who represented him at the trial below, met this motion with his affidavit that the reason for his failure to file his brief in time was that he had been incapacitated for work during part of the time by sickness, and had been engaged in the trial of a murder case during another part of the time, so that he was late in the preparation of his brief, and he prepared his printed brief and presented it to the court during the term at which his case was for argument.

The contentions he makes in his brief are (1) that the requirements of the selection of the jurors by a clerk and a commissioner who are members of the two principal opposing political parties are mandatory; (2) that a failure to comply with these requirements is fatal and prejudicial error; and (3) that a separate appointment of a commissioner must be made by the court for each term thereof. In support of these positions he has cited Dunn et al. v. United States, 238 F. 508, 151 C. C. A. 444; United States v. Murphy et al. (D. C.) 224 F. 554, 562; 24 Cyc. § 217; and United States v. Ambrose (C. C.) 3 F. 283. These authorities and the brief of counsel for defendant have been carefully read and considered, but they have not proved persuasive. The provision of the act of Congress for the appointment of the commissioner is simply that he is "to be appointed by the judge." It does not require that a separate appointment shall be made for each term of court, nor does it in any way fix or limit the time or term of the commissioner's service. It grants the power to appoint to the judge, and leaves the time of the appointment and the term of the service to his sound judicial discretion. There is, therefore, no sound reason to support the contention that his power is limited to the appointment of a commissioner for a single term of court.

The other objections of counsel to the ruling of the court below were so conclusively answered by Judge McGee in that part of his opinion in United States v. Brookman (D. C.) 1 F.(2d) 528, 532, 534, which we now quote, that we hereby adopt the part so quoted as the opinion of this court in this case and affirm the judgment below:

"* * * Much confusion will be avoided in examining the case law on the subject, if a distinction is made between acts that are to be performed by the judge in making the appointment of a jury commissioner and the acts of the commissioner and clerk in the discharge of their duties. This distinction is made by Judge Pardee in United States v. Chaires (C. C.) 40 F. 820, 821, 822, in which it is said:

"`An inspection of this statute shows that the work of preparing the names of the persons possessing the qualifications of jurors, and placing them in the box, is to be done by the clerk of the court and a jury commissioner to be appointed by the judge. The duty to be performed by these parties is clearly and specifically prescribed in the statute. It may be considered, and probably is, mandatory; but it is entirely distinct from the duty devolving, under the statute, upon the judge. The plea under consideration relates entirely to the performance of the duty of the judge. By the statute, the judge is to appoint a commissioner, who shall be a citizen of good standing, who shall reside in the district in which the court is held, and who shall be a well-known member of the principal political party in the district opposing that to which the clerk belongs. The question is whether this part of the statute is mandatory or directory; whether, in appointing a jury commissioner, the judge, while endeavoring to comply with the law, must make no mistake of fact or of judgment, but must, at the peril of all subsequent proceedings, be sure to appoint a citizen, not only of standing, but of good standing, and not only a known, but a well-known, member of the principal political party opposed to that to which the clerk belongs. The statement of the question, and the nature of the case, satisfies us that the statute in this particular is directory, and not mandatory. What is the standard for a citizen in good standing? By what rule is it to be determined who is a well-known member of a political party? Considering that the judge has knowledge, judicial or otherwise, as to the political party of the clerk, by what rule is the judge to determine which is the principal party opposed? Suppose that the clerk is an independent or a prohibitionist? In case of a challenge to the array of jurors, or a plea in abatement, who is to try the issue? All matters and questions come back to the judge. The judge, in the exercise of a sound discretion, under the responsibilities of his office, directed by the statute, passes upon the qualifications of the jury commissioner he appoints, and his action would seem to be final and conclusive, except, perhaps, in the court that can call the judge to account for misbehavior in office. Particularly must this be the case where neither injury nor prejudice nor oppression is apparent nor is averred.

"`We have examined the case of U. S. v. Ambrose C. C. 3 F. 283, relied upon by counsel for defendants as holding that the statute, as to the qualifications of the jury commissioner, is not directory merely, but is mandatory. We find no such question in issue in that case, nor any holding or language of the presiding judge therein to warrant the conclusion that such ever was his opinion. The matter presented by this plea is naturally an interesting and tender subject to this court (one of the judges having made the appointment in question), and we would be disposed, ex proprio motu, to suspend ruling on this plea, and direct an issue thereon, and an investigation thereunder, but for the fact, of which we take judicial notice as a part of the history of this and the preceding term, that upon the identical question the court has had and allowed the fullest investigation; that the real issue therein was not as to whether the jury commissioner was a Democrat, and a known Democrat, but whether he was a well-known Democrat, and thereafter, upon the evidence, the court has held and decided that the jury commissioner was and is a well-known member of the principal political party in the district opposing that to which the clerk belongs (U. S. v. Ewan C. C. 40 F. 451), and a further investigation is not necessary, either for the vindication of the court or the protection of parties.'

"In United States v. Caplis (D. C.) 257 F. 840, the defendants were charged with conspiracy to violate the Selective Draft Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 2044a-2044k), and filed a plea in abatement, based on an allegation that the jury...