Clement v. United States

Decision Date12 November 1906
Docket Number2,377.
Citation149 F. 305
CourtU.S. Court of Appeals — Eighth Circuit

[Copyrighted Material Omitted]

The defendant, Clement, was indicted in the District Court of the District of Minnesota for the Third Division for making false entries and willful misapplications of the funds and credits of the First National Bank of Faribault, of which he was at the time president, in violation of section 5209 of the Revised Statutes (U.S. Comp. St. 1901, p. 3497). He in due time challenged the panels of the grand and petit juries because they were drawn from the district at large. and were not composed of persons who resided in the Third Division of the district. He demurred to some counts of the indictment on the ground of duplicity. He moved for a continuance of the case at the time it was first set for trial on the ground that physical infirmities disabled him from preparing for trial at that time. He interposed at the close of the case a demurrer to the evidence, on the ground that it failed to establish the commission of any of the offenses charged. He filed a motion in arrest of judgment on the ground that the indictment charged no criminal offenses, These challenges demurrers, and motions were overruled, the trial was had, and defendant found guilty on 24 of the 27 counts of the indictment, and sentenced to a term in the penitentiary of 8 years on each count, with the provision that time should run on all concurrently. Exceptions having been duly saved to the foregoing rulings, the case is brought here for review by writ of error.

George N. Baxter (Daniel W. Lawler, on the brief), for plaintiff in error.

Paul A. Ewert (Charles C. Houpt, on the brief), for defendant in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

ADAMS Circuit Judge, after stating the case as above, .

Was the grand jury properly summoned? By the act, admitting Minnesota into the Union, of May 11, 1858 (chapter 31, 11 Stat. 285), and by other provisions of law, Minnesota was made to constitute one judicial district. Provision was made for the appointment of a district judge for the district, and for the holding of terms of court at Preston (later at Winona) and St. Paul. Sections 531, 551, Rev. St. (U.S. Comp. St. 1901 pp. 316, 446); Act March 3, 1859, c. 76, 11 Stat. 402. By the act of April 26, 1890 (chapter 167, Sec. 1, 26 Stat. 72 (U.S. Comp. St. 1901, p. 374)), it was enacted as follows:

'That for the purpose of holding terms of court the district of Minnesota is hereby divided into six divisions to be known as the 1st, 2d, 3d, 4th, 5th, and 6th divisions.'

The counties constituting these divisions, the terms and places for holding the court therein were then designated, and section 6 of the act provides as follows:

'That the grand and petit jury shall be summoned for each of said terms, which petit jury shall be competent to sit and act as such jury in either or both of said courts (circuit or district) at such terms.'

By the act of July 12, 1894 (chapter 132, 28 Stat. 102 (U.S. Comp. St. 1901, p. 376)), it was enacted as follows:

'That all criminal proceedings instituted for the trial of offenses against the laws of the United States arising in the district of Minnesota shall be brought, had and prosecuted in the division of said district in which offenses were committed.'

From the foregoing acts, which constitute all the legislation bearing on our present inquiry, it seems clear that only one judicial district has ever been established in the state of Minnesota; that this district has been divided for the convenience of suitors in the trials of causes into six divisions, not as general or separate judicial districts, with an independent court for each, but for the limited purpose disclosed by the act of 1890, 'of holding terms of court' in the district of Minnesota.

The Revised Statutes (section 563 (U.S. Comp. St. 1901, p. 455)) give to the District Courts of the United States jurisdiction 'of all crimes and offenses cognizable under the authority of the United States committed within their respective districts'; in other words, the jurisdiction of a district court is by law made coextensive with the territorial area of the district, and, unless limitations are found in the congressional acts, the right to draw a grand jury from the district as a whole would seem to be unquestionable. We are, however, not left without controlling authority on this proposition. The Supreme Court in Logan v. United States, 144 U.S. 263, 297, 12 Sup.Ct. 617, 36 L.Ed. 429, considering similar legislation for the state of Texas, decided adversely to the contention of the defendant in this case. Referring to a provision of that legislation similar to that found in the act of June 12, 1894, supra, Mr. Justice Gray, speaking for the court, says:

'This provision does not affect the authority of the grand jury for the district sitting at any place at which the court is appointed to be held to present indictments for offenses committed anywhere within the district. It only requires the trial to be had and writs and recognizances to be returned in the division in which the offense is committed. The finding of the indictment is no part of the trial.'

In Post v. United States, 161 U.S. 583, 587, 16 Sup.Ct. 611, 40 L.Ed. 816, the Supreme Court had under consideration the legislation to which attention has already been called relating to the creation and division of the district of Minnesota, and, after citing with approval the extract just quoted from the Logan Case, Mr. Justice Gray, again speaking for the court, says:

'Criminal proceedings cannot be said to be brought or instituted until a formal charge is openly made against the accused, either by indictment presented or information filed in court, or, at the least, by complaint before a magistrate.'

In Rosencrans v. United States, 165 U.S. 257, 260 and 261, 17 Sup.Ct. 302, 304, 41 L.Ed. 708, Mr. Justice Brewer, speaking for the Supreme Court, after calling attention to sections 563 and 629 of the Revised Statutes (U.S. Comp. St. 1901, pp. 455, 503), giving to District and Circuit Courts jurisdiction of the crimes and offenses committed within their respective districts, says:

'These statutes declare the general rule that jurisdiction is coextensive with district. That being the general rule, no mere multiplication of places at which courts are to be held or mere creation of divisions nullifies it. Indeed, the place of trial has no necessary connection with the matter of territorial jurisdiction. * * * We find many acts, some increasing in a district the places of trial, and others in terms subdividing the district into divisions. The former have no effect on the matter of jurisdiction. Some of these latter acts specifically limit the jurisdiction in criminal actions of the courts held in a division to the territory within that division (giving instances), while, on the other hand, some contain no such provision, as in the case of Minnesota (Act April 26, 1890).'

In Barrett v. United States, 169 U.S. 218, 18 Sup.Ct. 327, 42 L.Ed. 723, the Supreme Court, construing acts of Congress relating to South Carolina, held that a division of the state into 'two districts,' geographically speaking, did not divide the state into two judicial districts, so as to confine the jurisdiction of the Circuit Court to the territorial limits of each separate 'district.'

The foregoing authorities are conclusive of the proposition that the finding of the indictment against Clement by a grand jury drawn from the body of the district of Minnesota for a crime committed in the Third division of the district is not a violation of the provisions of the act of July 12, 1894, but, on the contrary, in harmony with them.

Was the petit jury lawfully summoned from the body of the district, or should it have been summoned from the counties composing the Third division of the district? Argument is drawn from the rule of the common law requiring juries to be summoned from the vicinage where the crime is committed, so that the accused can have the benefit of his own good character and standing, if he has such, and of such knowledge as the jury may possess of the character of witnesses who may testify for and against him. A full recognition of this rule still leaves the question, what is the vicinage, open. We think the sixth amendment to the Constitution answers it. It ordains that:

'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.'

By the judiciary act of 1789, and afterwards by acts providing for the admission into the Union of states other than the original 13, Congress, from time to time, ascertained and divided the several states into judicial districts, in harmony with the requirement of the constitutional provision just referred to. In the exercise of its delegated power, Congress, as seen in the legislation already referred to, created but one district out of the state of Minnesota.

In discussing this article of the Constitution, learned counsel for defendant has ingeniously argued that, even if the entire state is one district for some judicial purposes, it is not the district previously 'ascertained by law for the trial of indictments for criminal offenses. ' It may not be the district ascertained by law for the trial of such indictments, and at the same time it may be the judicial district ascertained by law from which an impartial jury is to be summoned. The sixth amendment does not use the italicized language; it stops with the provision requiring the...

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