Hauptman v. United States

• Decision Date: 28 July 1930
• Docket Number: No. 6051.,6051.
• Citation: 43 F.2d 86
• Parties: HAUPTMAN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

43 F.2d 86 (1930)

HAUPTMAN et al. v. UNITED STATES.^*

No. 6051.

Circuit Court of Appeals, Ninth Circuit.

July 28, 1930.

A. H. Ziegler and W. A. Holzheimer, both of Ketchikan, Alaska (Robert W. Jennings, of San Francisco, Cal., of counsel), for appellants.

Howard D. Stabler, U. S. Atty., of Juneau, Alaska.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

WILBUR, Circuit Judge.

Appellants were convicted in the District Court for the district of Alaska, First Division, at Ketchikan, Alaska, on September 24, 1929, for transporting intoxicating liquor in violation of the National Prohibition Act (27 USCA) and for possessing intoxicating liquors in violation of an act of Congress entitled "An Act to prohibit the manufacture or sale of alcoholic liquors in the territory of Alaska, and for other purposes," enacted February 14, 1917 (39 Stat. 903 48 USCA § 261 et seq.). They appeal from the judgment and assign on the appeal certain alleged errors occurring at the trial.

The defendants interposed a challenge to each of the jurors selected for the trial of this case on the ground that the jury box had not been filled in accordance with the provisions of the laws of Alaska with relation to selection of juries enacted by the Legislature of Alaska in 1925 (Laws of Alaska 1925, c. 16, p. 29), in that the names of the jurors were not placed in the jury box by the jury commissioner and the clerk one at a time alternately, but that 2,400 names were placed therein by the jury commissioner and the clerk, each placing therein alternately a small bunch or handful. On the argument it is conceded that the names so placed therein were from the prepared list agreed upon by the clerk and the jury commissioner. The above statute upon which the appellants rely provides for the filling of the jury box with names to be selected by the clerk of the court and by a jury commissioner of opposite political party appointed by the court. It is provided that "the Clerk and the Jury Commissioner shall each place one name of such prospective jurors in said box alternately, without reference to party affiliations, until the required number of qualified jurors shall have been so placed in said jury box; and after such names have been so placed in said box, the box shall, before the drawing, be well shaken by both the Clerk and the Jury Commissioner so as to thoroughly mix the cards or pieces of paper upon which the names of the prospective jurors have been written for placing in such box; and the Clerk and the Jury Commissioner shall, upon the order of the Judge, thereupon draw alternately one name from the box until the required number of jurors have been secured." Section 2.

This conforms in a general way to the method of selecting jurors provided by Congress in 1879 (21 Stat. 43, § 2 28 USCA § 412). This law was carried into the Compiled Laws of Alaska 1913 by the provisions of section 2228 thereof, which provided that the trial jurors should be "selected and summoned in the manner prescribed by the laws of the United States with respect to jurors of the United States district and circuit courts." After the passage of the Organic Act establishing the Legislature of Alaska and vesting it with legislative authority, the Legislature of Alaska for the first time enacted a law with reference to the selection of jurors in 1915. Laws of Alaska 1915, p. 123, c. 67. This statute dealt with a selection of jurors by the drawing of names from the trial jury box and the proceedings for the impanelment of a jury. In 1917 the Legislature of Alaska amended the act of 1915 by some minor changes therein and inserted the following provision: "No cases either civil or criminal shall be tried in the Court except in accordance with the above provisions except in civil cases upon the consent of the parties. The failure of the court to cause the above provisions in this Section to be complied with, shall be reversible error." Laws Alaska 1917, c. 59, § 3. This section (3) merely provided that the jury panel should at all times consist of at least twenty-four jurors and whenever the number was reduced below that, additional names should be drawn from the jury box which should contain at least 300 names. In 1923 the Legislature of Alaska enacted a new law for the choosing of jurors. Laws 1923, c. 91. It provided, as the previous act, for the drawing of jurors from the trial jury box and impanelment of jurors, the number of challenges allowed, and the method of procedure when the original venire had been exhausted. Section 7 thereof, is as follows:

"Section 7. No case, either civil or criminal, shall be tried in any of the courts of the Territory of Alaska, except in accordance with the foregoing provisions. Provided, however, that in civil cases, by consent of the parties, a jury may be drawn or selected in any manner upon which the parties may agree, and such jury, so drawn or selected, shall be deemed a legal jury, and such drawing or selection shall not be deemed a violation of the provisions of this act. Any violation of the provisions of this act is hereby declared to be reversible error."

It will be observed that for the first time the provision in regard to reversible error is broadened, as above mentioned, to cover any violation of the provisions of this act. The statute was re-enacted in 1925. Laws of Alaska 1925, c. 16, p. 29. The section as there enacted is in part as follows:

"Section 12. No case, either civil or criminal, shall be tried in any of the Courts of the Territory of Alaska, except in accordance with the provisions of this Act, and any violation of the provisions of this Act is hereby declared to be reversible error."

It is contended that the provision with reference to the placing of names in the jury box by the clerk and the commissioner alternately is mandatory, and that a failure to comply with the act necessitates reversal of this case regardless of the question of whether or not the appellants were prejudiced in any manner by the variance from the statutory method of selection. It should be noted that although the same language used by the Alaskan Legislature in the law of 1925 with relation to placing the names of the jurors alternately in the jury box has been in the federal statutes since 1879, it has been uniformly held that a failure to comply with this statute, whether regarded as mandatory or directory, cannot be taken advantage of by the defendant in a criminal case unless he can show that he has been prejudiced thereby. In Brookman v. United States, 8 F.(2d) 803, 806, decided by the Circuit Court of Appeals of the Eighth Circuit in 1925, the question was considered as to whether or not the alleged failure of the trial judge to select a jury commissioner of the opposite political party to the clerk as required by section 276 of the Judicial Code (U. S. Comp. St. § 1253, 28 USCA § 412), was prejudicial, and the court said:

"The cases in which the manner of drawing juries under section 276 of the Judicial Code has been assailed are numerous, and an examination of them will disclose without an exception that they lay down the rule that any irregularity in drawing jurors, grand or petit, cannot avail a defendant whose rights have not been prejudiced thereby, and that the burden is upon him to show by the averment of specific facts that he has been prejudiced, specifying how, in what manner, and to what extent, and, in making this showing, general statements and general conclusions of law or fact, or both, are to be avoided, and, if resorted to, will be disregarded. The following are probably the leading cases on this subject: Agnew v. United States, 165 U. S. 36, 44, 17 S. Ct. 235, 41 L. Ed. 624; United States v. Ambrose (C. C.) 3 F. 283, 286; United States v. Eagan (Judges Brewer and Thayer; C. C.) 30 F. 608; United States v. Benson (C. C.) 31 F. 896; United States v. Ewan (C. C. Fla.) 40 F. 451, 453; United States v. Chaires (C. C. Fla.) 40 F. 820, 822, 823; Wolfson v. United States (C. C. A. 5) 101 F. 430, 433, 41 C. C. A. 422; United States v. Greene (D. C.) 113 F. 683; United States v. Cobban (C. C. Or.) 127 F. 713, 715, 716; United States v. Merchants' & Miners' Trans. Co. (C. C. Ga.) 187 F. 355, 362; United States v. Nevin (D. C. Colo.) 199 F. 831, 833; United States v. Murphy (D. C. N. Y.) 224 F. 554, 559; Moffatt v. United States (C. C. A. 8) 232 F. 522, 529, 146 C. C. A. 480; Dunn v. United States (C. C. A. 5) 238 F. 508, 151 C. C. A. 444; United States v. Caplis (D. C.) 257 F. 840; Williams v. United States (C. C. A. 9) 275 F. 129."

In the case of United States v. Greene, cited by the United States Circuit Court of Appeals for the Eighth Circuit, as above stated, District Judge Speer, after stating the foregoing rule, applied the same to a situation very similar to that presented by the record here. In that case plea in abatement was interposed to an indictment upon nine grounds. The court said:

"The first ground is that the names of persons placed in the jury box from which the grand jury was taken were not placed therein by H. H. King, clerk of this court, and the jury commissioner, but that, H. H. King being accessible, and in no wise disabled or disqualified, the names were placed in the box by the jury commissioner and a deputy clerk by the handfuls or bunches, and that they should be placed therein alternately by the said clerk and by the said commissioner, and that this tended to the injury and prejudice of these defendants."

Of this the court said:

"It is not averred that the names in the jury box did not conform to the names on the jury list or book referred to. It is averred that a deputy clerk placed these names in the jury box. This would not, in my judgment, have been a violation of law, and assuredly would not have disqualified the jurors whose names were placed in the box, provided the clerk was present, took part in the selection of the names, and supervised the manual act of placing the...