Hawkins v. United States

• Decision Date: 05 June 1902
• Docket Number: 771.
• Citation: 116 F. 569
• Parties: HAWKINS v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

116 F. 569

HAWKINS v. UNITED STATES.

No. 771.

United States Court of Appeals, Ninth Circuit.

June 5, 1902

John B Allen and James E. Fenton, for plaintiff in error.

Joseph K. Wood, U.S. Atty. Second Division, D. Alaska (Marshall B Woodworth, U.S. Atty. N.D. Cal., of counsel).

The plaintiff in error, together with George Allen and Thomas Dolan, were jointly charged with the crime of robbery in an indictment filed in the district court of Alaska, Second division, on the 23d day of January, 1901. The indictment charged that the defendants, on the 21st day of December 1900, in the district aforesaid, did wrongfully, unlawfully and feloniously take, steal, and carry away from the person of R. J. Embleton, and against his will, and by force and violence to his person, the following described personal property, namely, one piece of paper money of the dominion of Canada of the denomination and value of $100; two pieces of paper money of the dominion of Canada, each of the denomination and value of $50; four pieces of paper money of the dominion of Canada, each of the denomination and value of $20; one piece of paper money of the dominion of Canada of the denomination and value of $10 (a more particular description of each or any of said pieces of paper money aforesaid being to the grand jury unknown); also one gold watch, of the value of $75,-- all the personal property of the said R. J. Embleton. After a motion to quash and set aside the indictment had been interposed and denied, and demurrer to the indictment overruled, a separate trial of the defendants was demanded, and allowed by the court. The trial of the defendant Allen was commenced before the court and a jury on February 11, 1901, and resulted in a verdict of guilty being returned by the jury on February 15, 1901. The trial of the defendant in this case was commenced before the court and a jury on February 18, 1901, and resulted in a verdict of guilty being returned by the jury on February 21, 1901. In impaneling the jury to try the case, the following proceedings took place: When the first juror was called, the defendant requested the court to have 12 jurors called into the box before commencing the examination of any juror. This request was denied, and the defendant excepted to the ruling of the court. This juror was afterwards excused for cause. The second juror was called, and, after being examined as to his qualifications to serve as a juror, he was challenged by the defendant for actual bias. The court denied the challenge, and the defendant excepted. Thereupon the court directed the defendant to exercise his right to a peremptory challenge at that time. The defendant requested of the court that the jury box be filled, and the jurors passed for cause, before the defendant should be required to exercise his right to a peremptory challenge. The court denied this request, and directed the defendant to then and there exercise his right of peremptory challenge with respect to the juror then in the box, or waive his right afterwards to challenge the said juror peremptorily. To this ruling the defendant excepted, on the following grounds: 'First. That under chapter fourteen of title two of the Penal Code of the district of Alaska the defendant had the right to make a peremptory challenge of any juror at any time before his right of challenge ceased, and that his right of challenge did not cease until the jury were complete, and sworn to try the cause. Third. That the said ruling of the court tended to abridge defendant's right to a trial by a fair and impartial jury, and did impair defendant's power of selecting a fair and impartial jury and exercising his right of peremptory challenge. Fourth. That the said ruling of the court in effect deprived the defendant George Hawkins of the right of peremptory challenge. ' The defendant thereupon, in obedience to the ruling of the court, but under protest, at said time challenged the juror peremptorily. Five other jurors were called to the box at different times, and severally examined as to their qualifications to serve as jurors, and were challenged by the defendant for actual bias. The challenges were defined by the court, and thereupon the defendant, in obedience to the ruling of the court, but under protest, immediately after their examination had been completed, severally challenged the jurors peremptorily, and they were excused. Four other jurors were likewise called to the box at different times, and severally examined as to their qualifications to serve a jurors, and, though not challenged by the defendant for actual bias, the defendant, in obedience to the ruling of the court, but under protest, immediately after the examination of said jurors had been completed, challenged the said jurors peremptorily, and they were excused. Ten other jurors were also called to the box at different times, and examined as to their qualifications, and, although not challenged for actual bias, or peremptorily at the time their examinations were completed, the court required the defendant to exercise his right of peremptory challenge at that time. The defendant, claiming the right to reserve his peremptory challenge to jurors until there were in the jury box 12 persons whom the court had adjudged to be competent jurors, declined to exercise his peremptory challenge at the time he was so directed by the court. Accordingly, under the direction of the court, these 10 jurors were severally sworn to try the case. One juror was called to the box and examined as to his qualifications, and challenged by the defendant for actual bias. The challenge was denied by the court, and the juror was sworn to try the case. After 11 jurors had been examined and accepted and sworn to try the case, the following proceedings took place in the course of the examination of the juror T. C. West: When the examination of this juror as to his qualifications had been completed, the court required the defendant to exercise his right of peremptory challenge to the said juror, or to accept the said juror, and waive his right to thereafter challenge him peremptorily. The defendant, in obedience to the ruling of the court, whereupon the juror was accepted by counsel for the government. Thereupon the defendant, having exercised nine peremptory challenges, made under the ruling of the court, but under protest, then asked leave of the court to exercise a peremptory challenge as to the juror Ike Powers, the fifth juror sworn to try the case, before the said T. C. West should be sworn to try the case. The court denied this request. The defendant excepted to the ruling of the court denying the said request, upon the grounds. First, that at the time the said juror T. C. West was passed by the counsel for the defendant as to any challenge for cause and accepted by the government the said defendant was then entitled to exercise 10 peremptory challenges to the said panel of 12 jurors then in the box; second, that at the time the said defendant requested to exercise a peremptory challenge to the said juror Ike Powers he then had a right to exercise the said peremptory challenge, and his right of exercising a peremptory challenge had not ceased; third, that the peremptory challenges theretofore exercised by the said defendant were exercised under protest, and under an erroneous ruling of the court with reference to the exercise of peremptory challenge. The exceptions were allowed, and thereupon the juror T. C. West was sworn as the twelfth juror to try the case. Subsequently, after the district attorney had opened the case to the jury for the prosecution, but before any evidence had been introduced in the case, counsel for the defendant made application to the court, upon information received by him after the swearing in of the juror as to the answers made by him to the effect that he had no opinion touching the guilt or innocence of the accused, and desired then to reexamine this juror upon the subject of his qualifications upon the ground of actual bias. Counsel announced that he expected to show that during the recess he had received the information for the first time, and that he had no means of knowing of it at the time the juror was passed both for cause and peremptorily. The court denied the application. Defendant's counsel then asked leave of the court to prepare affidavits showing that this juror had expressed an opinion unfavorable to the accused. The defendant's counsel also asked permission to further examine this juror touching his qualifications to act in said cause. This request was denied by the court. Thereupon counsel for the defendant requested leave to exercise a peremptory challenge as to the juror T. C. West. This request was denied, and an exception taken. While the examination of George L. Verge, the ninth juror called to the box was in progress, he was asked by counsel for the defendant, in the hearing of the jurors, as to whether he had at that time any opinion as to the guilt or innocence of the defendant George Allen. To this question the district attorney objected, on the ground that it was incompetent, irrelevant, and immaterial, whereupon the court said, 'That is one of the things that is an established fact in this community. ' To this remark counsel for defendant excepted upon the grounds: First, 'That, as appears from the indictment herein and the proceedings herein, the defendant George Allen was charged, jointly with the said George Hawkins and Thomas Dolan, with the crime alleged in the indictment; second, that the said remark of the court has improper, and prejudicial to the substantial right of the defendant George Hawkins. ' The exception was allowed, and, after further examination of the juror, he was sworn to try the case. The case has been brought...