Jackson v. United States

• Decision Date: 14 May 1900
• Docket Number: 570.
• Parties: JACKSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

102 F. 473

JACKSON v. UNITED STATES.

No. 570.

United States Court of Appeals, Ninth Circuit.

May 14, 1900

[Copyrighted Material Omitted]

W. T Hume, for plaintiff in error.

Robert A. Friedrich and Frank L. Coombs, U.S. Dist. Attys.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

The plaintiff in error was indicted, tried, and convicted in the district court of the district of Alaska for the crime of an assault with a dangerous weapon, and sentenced to 10 years at hard labor in the penitentiary at McNeil's Island, in the state of Washington. The entire proceedings, from the impaneling of the grand jury to the passing of the sentence by the court, are claimed to be either absolutely null and void or erroneous. The jurisdiction of the court is attacked and the punishment prescribed claimed to be cruel and inhuman. The case is interesting and important. Prior to the discussion of any points raised by the assignments of error, a brief statement of some of the facts will be made, in order that some of the points will be better understood. From the argument of counsel it appears that in the spring of 1898 one Jeff Smith, who was commonly known, and is designated in the testimony, as 'Soapy Smith,' a man of alleged desperate character, located in Skaguay, Alaska, and there conducted a saloon and gambling house, and had gathered around him a half-dozen or more men of like character, as his associates, who are referred to in the testimony as belonging to 'Smith's gang,' and by his general conduct had made himself obnoxious to the law-abiding citizens of the town. Smith and some of his associates (not including Jackson) were, among other things, accused of having enticed a miner into Smith's saloon, and of robbin him of a large amount of money. This, added to other events which a reign of terror existed. Matters finally reached a climax, which resulted in the commission of the offense charged against Jackson. On July 8, 1898, about half past 9 o'clock p.m., the citizens of the town assembled at Sylvester's wharf, and detailed four men, namely, J. M. Tanner, J. M. Murphy, Frank Reed, and J. H. Landis, to guard the approaches to the wharf. The record shows that soon thereafter Smith and his associates, including the plaintiff in error, Jackson, arrived at the approach to the wharf, where they came to a halt, and then started forward,--Smith being in the lead, with a Winchester rifle in his hand, cursing and swearing, using violent and obscene language,-- and ordered the assembled citizens to get off the wharf, and, with oaths, threatened to drive every one off. Smith continued right along through the center of the wharf (which was about 16 feet wide) for about 60 feet, going by Tanner and Murphy, and when he got opposite Reed he wheeled around and struck at Reed with his gun. Shooting immediately occurred between Reed and Smith, resulting in the immediate death of Smith, and mortally wounding Reed, who subsequently died. At the time of this shooting the plaintiff in error, an associate of Smith, drew his revolver and pointed it at Tanner, which is the assault for which Jackson was tried and convicted, further particulars of which will be hereafter given. When Smith was killed, Jackson withdrew his revolver, and he and the other associates of Smith hastily retired from the wharf. The citizens then met for the purpose, as is contended by the plaintiff in error, of organizing a vigilance committee to hang the associates of Smith, and, as claimed by the defendants in error, for the purpose of checking the acts of the outlaws, and, if possible, to arrest and bring them to trial. The court seems to have confined the acts of Soapy Smith and his associates within proper limits, in the admissibility of evidence in regard to the offense committed by Jackson. It was impossible to exclude the main facts as to what occurred at the time of the assault. It was proper that the circumstances leading up to the assault should be admitted. There ought not to be any question but what the defendant, if he had claimed to have drawn his revolver as a matter of defense or protection, or that it was drawn purely in jest or under circumstances tending to show it was not serious, should have been allowed to do so. The government, equally with the defendant, should be allowed the same rights and the same privileges. Either party had the undoubted right to introduce evidence tending to show the nature, character, and extent of the assault. If the facts were such as to show that the defendant was associated with men of low, depraved, vicious, or criminal tastes or habits, and was acting with them in such a manner as tended to prejudice his case before the jury, that was his misfortune, and not any fault or error on the part of the court. The presentation of such facts cannot be said to have been done for the purpose of 'railroading' the defendant to prison, and convicting him, on 'general principles,' for the wrongful and illegal acts of others. He must, however, be held responsible for his own conduct. It was, of course, the special duty of the court, which it seems to have faithfully observed throughout the whole trial, to see that the defendant, however low and degraded he or his associates might have been, was not to be prejudiced by the admission of any improper evidence. Every person, whether of low or high degree, is entitled to a fair and impartial trial, which is the most inestimable privilege and right that belongs to any individual accused of crime. The rights of the defendant in this respect were sedulously guarded by the court, and, and, if the defendant was prejudiced before the jury, it was owing to the facts and circumstances which immediately led to the assault, and the manner in which it was made. Such a prejudice it is impossible to avoid. If the offense was of an aggravated character, resulting from the acts and conduct of the accused, he has no one to blame but himself. At the outset it is deemed proper to state, as is clearly shown by the record, that, in some of the points made by the plaintiff in error, we are called upon to assume that error might have occurred, without any attempt to show, as a matter of fact, that any did occur. Error will not be assumed by this court unless there was a prejudicial departure from the established rules in the formation of the jury, in the admission of evidence, or other rulings of the court. If error occurred during the trial, it must affirmatively be shown by the record, instead of by appealing to the imagination, and claiming that error might have occurred. In Jones v. Territory, 4 Okl. 45, 52, 43 P. 1075, the court said, 'There is no excuse for claiming the valuable time and attention of this court in the investigation of objections which have nothing in the record for a basis. ' With these general observations, we proceed to notice the 18 errors assigned, under appropriate heads.

1. It is claimed that the court erred in overruling the challenge to one Frank Burns as a grand juror, on the ground of actual bias. The facts are that, before the grand jurors were sworn, George W. Wilder, Van B. Triplett, W. E. Foster, John Bowers, and Turner Jackson, the associates of Smith, challenged Frank Burns, who was summoned as one of the persons to act as a grand juror, and objected to said Burns being sworn for the following reasons, viz.:

'That said Wilder, Triplett, Foster, Bowers, and Jackson are in custody, having been held to answer to said grand jury upon charges of felony, which charges it will become the duty of said grand jury to investigate. That said Burns was one of a committee who investigated testimony against these defendants and caused their arrest, and said Burns had signed a written report, which had been published in the Daily Alaskan, in which report said Burns had expressed his opinion as to the guilt of the defendants, and that the evidence in the possession of said committee was sufficient to convict.'

Whereupon the court overruled said challenge, and declined to excuse said Burns from service on said grand jury, but instructed Burns that he should not participate in the investigation of the charges against said defendants, nor vote upon the indictments.

We are of opinion that this action of the court was not erroneous. The procedure relative to summoning and impaneling grand jurors is often expressly provided for by statute. In such cases the courts substantially conform to such procedure. In Reynolds v. U.S., 98 U.S. 145, 153, 25 L.Ed. 244, the court held that section 808 of the Revised Statutes, providing for impaneling grand juries, applies only to the circuit and district courts of the United States, and that the laws of the territory govern and control the impaneling of a grand jury. See, also, Publishing Co. v. Fisher, 166 U.S. 464, 17 Sup.Ct. 618, 41 L.Ed. 1079.

In the organic act providing a civil government for Alaska it is enacted:

'That the general laws of the state of Oregon now in force are hereby declared to be the law in said district, so far as the same may be applicable and not in conflict with the provisions of this act or the laws of the United States.' 23 Stat. 25, Sec. 7.

The statute of Oregon provides as follows:

'Before accepting a person drawn as a grand juror, the court must be satisfied that such person is duly qualified to act as a juror, but when drawn and found qualified he must be accepted, unless the court, on the application of the juror and before he is sworn, shall excuse him from such service for any of the reasons prescribed by chapter 12 of the Code of Civil Procedure.'

Chapter 12 provides for the general qualifications and exemptions of jurors. Hill's Ann. Laws Or. Sec. 1233 (34):

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