Johnson v. United States

• Decision Date: 17 December 1917
• Docket Number: 2891.
• Citation: 247 F. 92
• Parties: JOHNSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

247 F. 92

JOHNSON et al. v. UNITED STATES.

No. 2891.

United States Court of Appeals, Ninth Circuit.

December 17, 1917

George B. Grigsby, of Juneau, Alaska, Hugh O'Neill, of Nome Alaska, Thomas R. White, of San Francisco, Cal., and O. L Willett, of Seattle, Wash., for plaintiffs in error.

F. M Saxton, U.S. Atty., of Nome, Alaska.

The plaintiffs in error, Johnson and Laird, were convicted of gambling by playing 'stud poker' on January 5, 1916. They were fined, and thereafter sued out writ of error. Many errors are assigned, but we need only consider one. When the case was being proceeded with for trial and 7 jurors had been drawn from the box, the panel was exhausted. Thereupon the court ordered a special venire of 25 jurors returnable the following morning. Before the venire was issued counsel for defendants moved that a special officer be appointed to serve the venire about to issue for additional jurymen, on the ground that the United States marshal and his deputies were not indifferent persons and were interested in the event of the cause. The motion was based upon the affidavit of George B. Grigsby. Esq., one of the counsel for defendants, who set forth: That on April 26, 1916, there had been a previous trial of the action in the same court in which it was then pending, which had resulted in a disagreement of the jury; that on the previous trial one N. V. Nelson testified that on December 30, 1915, he was employed by E. R. Jordan, United States marshal for the Western division, district of Alaska, to look for gambling in the town of Nome; that thereafter, pursuant to such employment, Nelson gambled for money in the Arctic Billiard Parlors, and that on January 5, 1916, he had gambled for money with certain of the defendants; that during the progress of the game he had reported the existence of the gambling to Deputy Marshal Holland; that thereupon Nelson returned to the billiard parlor, and shortly thereafter Holland, with three other deputy marshals, entered the place and arrested the defendants without a warrant; that at the former trial Jordan testified that he employed Nelson and paid him $65 for his services out of his personal funds; that on the former trial one Moore testified that before December 25, 1915, he heard Marshal Holland say to the defendant Johnson, 'I am coming after you and I am going to get you;' that Jordan and all of his deputy marshals were witnesses on the former trial, and with the exception of Nelson and the deputy marshals named there was no evidence tending to prove that defendants played the games mentioned in the indictment, nor any evidence that the games mentioned in the indictment were played for money, except the evidence of Nelson; that the prosecution originated in the marshal's office, without the complaint of any private citizens; that by reason of the foregoing facts the marshal and his deputies were unduly interested in securing a conviction. The court overruled the motion, and the marshal proceeded to serve the special venire. Exception was preserved, and error was assigned.

Section 803 of the Revised Statutes of the United States is as follows: 'Writs of venire facias, when directed by the court, shall issue from the clerk's office, and shall be served and returned by the marshal in person, or by his deputy; or, in case the marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as may be specially appointed for that purpose by the court, who shall administer...