Jones v. United States

• Decision Date: 04 May 1908
• Docket Number: 1,497.
• Parties: JONES et al. v. UNITED STATES. [a1]
• Court: U.S. Court of Appeals — Ninth Circuit

162 F. 417

JONES et al. v. UNITED STATES. ^[a1]

No. 1,497.

United States Court of Appeals, Ninth Circuit.

May 4, 1908

S. B Huston and Martin L. Pipes, for plaintiffs in error.

William C. Bristol, U.S. Atty.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

The plaintiffs in error were defendants in the court below to an indictment based upon the provisions of section 5440 of the Revised Statutes (U.S. Comp. St. 1901, p. 3676), which reads as follows:

'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy all the parties to such conspiracy shall be liable to a penalty of not less than one thousand dollars and not more than ten thousand dollars, and to imprisonment not more than two years.'

We may as well, also, insert here some other sections of the same statutes which are pertinent to the case as presented. They are:

'Sec. 808. Every grand jury impaneled before any District or Circuit Court shall consist of not less than sixteen nor more than twenty-three persons. If of the persons summoned less than sixteen attend, they shall be placed upon the grand jury and the court shall order the marshal to summon either immediately or for a day fixed, from the body of the district, and not from the bystanders, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attendance other jurors sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose. ' U.S. Comp. St. 1901, p. 626.

'Sec. 811. The Circuit and District Courts, the district courts of the Territories, and the Supreme Court of the District of Columbia may discharge their grand juries whenever they deem a continuance of the sessions of such juries unnecessary. ' U.S. Comp. St. 1901, p. 627.

'Sec. 1021. No indictment shall be found nor shall any presentment be made, without the concurrence of at least twelve grand jurors. ' U.S. Comp. St. 1901, p. 719.

In the court below the plaintiffs in error made a motion to quash the indictment against them on the ground that the names of the witnesses summoned before the grand jury were not inserted at the foot of the indictment or indorsed thereon. By a statute of the state of Oregon, where the case arose, it is provided that the indictment must be set aside when 'the names of the witnesses summoned before the grand jury are not inserted at the foot of the indictment, or indorsed thereon' (section 1349, B. & C. Comp. Oregon), which provision of the state statute the Supreme Court of Oregon has held to be mandatory. State v. Pool, 20 Or. 150, 25 P. 375; Owens v. Snell, Heitshu & Woodard Co., 29 Or. 483, 44 P. 827; State v. Andrews, 35 Or. 388, 58 P. 765; State v. Warren, 41 Or. 348, 69 P. 679.

It is insisted on the part of counsel for the plaintiffs in error that the state statute and state practice of Oregon controls the federal court in that respect. In that counsel are altogether mistaken. Criminal cases in the federal courts are governed and controlled by federal statutes and federal decisions, and state statutes and state decisions are inapplicable. United States v. Reid, 12 How. 363, 13 L.Ed. 1023; Starr v. United States, 153 U.S. 625, 14 Sup.Ct. 919, 38 L.Ed. 841; Jones v. United States, 137 U.S. 211, 11 Sup.Ct. 80, 34 L.Ed. 691; Simmons v. United States, 142 U.S. 148, 12 Sup.Ct. 171, 35 L.Ed. 968; Logan v. United States, 144 U.S. 301, 12 S.Ct. 617, 36 L.Ed. 429; Lang v. United States, 133 F. 204, 66 C.C.A. 255; United States v. Davis (C.C.) 103 F. 457; United States v. Hall (D.C.) 53 F. 353;

United States v. Stone (C.C.) 8 Fed. 239.

In the case of Shelp v. United States, 81 F. 694, 26 C.C.A. 570, which arose in Alaska, we said:

'The statute of the United States provides that, when a party is indicted for treason, a copy of the indictment and a list of the jury and of the witnesses to be produced at the trial, stating the place of abode of each juror and witness, shall be furnished to such persons three days before the trial. Rev. St. Sec. 1033 (U.S. Comp. St. 1901, p. 722). This statute has no application to this case. There is no statute which requires a list of the witnesses to be furnished to a person indicted for a misdemeanor. If the indictment is not for a capital offense, the defendant is not entitled, as a matter of right, to a list of witnesses or jurors. U.S. v. Wood, 3 Wash.C.C. 440, Fed. Cas. No. 16,756; U.S. v. Williams, 1 Cranch, C.C. 178, Fed. Cas. No. 16,709; U.S. v. Van Duzee, 140 U.S. 169, 173, 11 Sup.Ct. 758, 35 L.Ed. 399, and authorities there cited.'

In Ball v. United States, 147 F. 32, 78 C.C.A. 126, this court also said:

'It is assigned as error that the court overruled the motion of the plaintiff in error to require the district attorney to furnish him a list of all the witnesses to be produced against him on the trial, in accordance with the provisions of section 1033 of the Revised Statutes (U.S. Comp. St. 1901, p. 722). That statute applies only to the trial of treason and capital cases in the courts of the United States. The present case was tried in a territorial court under the Penal Code and Code of Criminal Procedure. Those Codes contain no requirement that a list of witnesses be furnished the accused upon demand or otherwise. In Thiede v. Utah Territory, 159 U.S. 510, 515, 16 Sup.Ct. 62, 40 L.Ed. 237, it was held that section 1033 does not control practice and procedure in territorial courts. The court said: 'In the absence of some statutory provision, there is no irregularity in calling a witness whose name does not appear on the back of the indictment or has not been furnished to the defendant before the trial."

In Balliet v. United States, 129 F. 689, 64 C.C.A. 201, the Circuit Court of Appeals for the Eighth Circuit, in passing upon a similar question, said:

'Except when a person is indicted for treason or some capital offense (vide section 1033, Rev. St. U.S.), there is no provision found in the federal statutes requiring the accused in a criminal action to be furnished with a list of the witnesses who will be produced against him, or requiring the names of witnesses to be indorsed on the indictment; and the fact that a special provision is made for advising the accused of the names of witnesses who will be produced on trials for treason and other capital offenses warrants the inference that in prosecutions for other offenses against the laws of the United States it is unnecessary to advise the accused of the names of witnesses who will be sworn. The maxim, 'Expressio unius est exclusio alterius,' clearly applies. By virtue of section 1033, supra, a person indicted for treason or a capital offense is entitled to be furnished with a list of witnesses to be produced, three days before the trial on an indictment for treason and two days before the trial in other capital cases, and, if the accused seasonably claims this right, it is error to put him on trial and permit witnesses to testify against him without furnishing him with a list. Logan v. United States, 144 U.S. 263, 304, 12 Sup.Ct. 617, 36 L.Ed. 429. But in the absence of some statute prescribing a contrary rule there is neither error nor irregularity in permitting a witness for the government to be sworn, in criminal cases other than those above mentioned, whose name does not appear on the back of the indictment or has not been furnished to the accused.'

The plaintiffs in error also filed a plea in abatement, which plea was based upon this agreed statement of facts: 'The grand jury which indicted the defendants was composed of 20 members. They were all present during the taking of the testimony against the defendants, except one, F. W. Durbin, on Friday, September 1, 1905. They all voted in favor of the indictment against the defendant Potter, and all but one as against the defendant Jones, but did not return their indictment into court at that time. They thereupon adjourned until Tuesday, the 5th day of September, 1905. After they had adjourned, the United States attorney and the foreman caused a notice to be sent to them, by mail, telegraph, and telephone messages, through the United States marshal and his deputies, to meet again on Saturday, the 2d day of September, 1905. Eighteen of them met on the 2d, the said F. W. Durbin not being present; and another, Jackson A. Bilyeu, was not present because he was not notified. Durbin had been excused for an indefinite period by the foreman and the United States Attorney, on the 26th of August, and did not meet with the grand jury until the 28th of September. On the 2d of September, when 18 of them met, they found this indictment, and it was indorsed and returned into court by the foreman in the presence of the other seventeen.'

It is not pretended that the court had adjourned for the term, nor does the plea negative the fact that 12 jurors agreed in finding the indictment. The contention is that the grand jury was not in legal session, because on the 1st of September it had adjourned to the 5th, and had no authority to reconvene on the 2d. We do not think there is any merit in the point. A grand jury can be discharged only by direct order of the court, or by the final adjournment of the court for the term for which the jury is impaneled. In the absence of an order of the court, certainly, the jury may meet and adjourn upon its own motion, and may lawfully proceed in the performance of its duties while in existence, whether the court be in session or not. Nealon v. People, 39 Ill.App. 481; In...