Kloss v. United States

• Decision Date: 07 May 1935
• Docket Number: No. 10155.,10155.
• Parties: KLOSS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

77 F.2d 462 (1935)

KLOSS v. UNITED STATES.

No. 10155.

Circuit Court of Appeals, Eighth Circuit.

May 7, 1935.

Edward Patterson, of Clarksville, Ark., and Fadjo Cravens, of Fort Smith, Ark., for appellant.

Clinton R. Barry, U. S. Atty., of Fort Smith, Ark. (Duke Frederick and John E. Harris, Asst. U. S. Attys., both of Fort Smith, Ark., on the brief), for the United States.

Before STONE, SANBORN, and FARIS, Circuit Judges.

FARIS, Circuit Judge.

Appellant was convicted of a misdemeanor for that he had violated the provisions of section 241, 18 USCA, and was sentenced to jail and to pay a fine. From this judgment and sentence he has appealed.

In the view we take of the case, the only errors relied on by appellant for reversal which warrant discussion are: (a) That the evidence is not sufficient to warrant the conviction of appellant; (b) that the trial court erred in permitting the appellee to exercise more than three, to wit, five peremptory challenges of jurors out of the trial panel; (c) that the court erred in refusing to charge the jury that appellant could not be convicted unless he actually knew at the time of the alleged assault that there was a case pending against him in the federal court; and (d) that the court erred in refusing certain charges requested by the appellant.

The evidence adduced on the trial showed the guilt of appellant conclusively. The fact of the assault was not denied. Appellant did not testify as a witness for himself. He merely sought by the one witness to the assault whom he called to show self-defense. Prior to the assault, and on the day preceding, the appellant had told the prosecuting witness not to go before the grand jury at Fort Smith and testify as a witness against the appellant. The witness, however, disregarded the suggestion and did appear and testify. On the day following, appellant, having learned from a local city officer that the witness had been to Fort Smith to testify, made three several visits to the place of business of the witness on the day of the assault, but failed to find the witness till late in the afternoon. Upon seeing the witness, appellant accosted him profanely and inquired if he had been to Fort Smith, or, as he framed the inquiry, "up yonder." Being told by the witness that he had, appellant inquired why he went. The witness told appellant he had been subpœnaed and exhibited a subœna to appellant who read it, and said to the witness that he had told him not to go. The witness admitted the fact, but insisted that he had been compelled to go because of the subpœna. Thereupon appellant gave profane voice to a fast increasing mental urge to dislocate sundry of the witness' cervical vertebræ. To this seeming end he got out of his car and assaulted the witness. And the fight began. Appellant had on the same day, but prior to the assault, been indicted for a felony and the charge was yet pending.

During the selection of the trial jury the appellee had made four peremptory challenges, without objection from appellant. Appellee then challenged a fifth juror, who at the request of the court left the jury box; thereupon appellant objected and excepted for that, since the charge is only a misdemanor, but three peremptory challenges were permitted to the government, whereas, it took five.

The fifth peremptory challenge by the government was of course unwarranted. But rather clearly it must have occurred through an inadvertence shared by both the court and all counsel in the case. This however, will not save the error, if there were one, since the matter was yet capable of correction at the time it was called to the attention of the trial court. The record does not show that it was inadvertent; this statement is found in the brief of the appellee. It may well be that such a view may logically account for the occurrence of the thing in the trial for a mere misdemeanor. But absent any record touching inadvertency, even with it, but this we need not rule — it was the duty of appellant to object to the fourth challenge by the government. Since he did not do so, he waived the point. He could not sit silently by and take advantage of the government's challenge of jurors, whom perhaps appellant did not want and then be heard to object only when the government challenged a juror whom appellant did want.

Moreover, the courts have uniformly said that the right of a defendant in picking a trial jury is bottomed not on selection, but on rejection. United States v. Marchant, 12 Wheat. 480, 6 L. Ed. 700. No defendant has the right to have any particular juror or jurors on the trial panel. Cain v. United States (C. C. A.) 19 F.(2d) 472, loc. cit. 475. His sole right to reject or object ends when a fair and impartial panel has been chosen. It is nowhere contended by appellant that the jury which tried him was unfair, partial, or prejudiced. Pointer v. United States, 151 U. S. 396, 412, 14 S. Ct. 410, 38 L. Ed. 208. And if it had been, as to component members, he could by exercising his peremptory challenges, which he did not exhaust, have thus rid himself of those to whom he objected. Sawyer v. United States, 202 U. S. 150, 26 S. Ct. 575, 50 L. Ed. 972, 6 Ann. Cas. 269; Connecticut Mutual Life Ins. Co. v. Hillmon, 188 U. S. 208, 23 S. Ct. 294, 47 L. Ed. 446; Krause v. United States (C. C. A.) 147 F. 442; Simpson v. United States (C. C. A.) 184 F. 817; Richards v. United States (C. C. A.) 175 F. 911; United Mine Workers v. Coronado Coal Co. (C. C. A.) 258 F. 829; Tierney v. United States (C. C. A.) 280 F. 322. It is persuasive, though not controlling, that the rule in Arkansas seems in accord. Rose v. State, 178 Ark. 980, 13 S.W.(2d) 25.

So, we think the error urged must be disallowed, upon the grounds indicated, first, that appellant waived it, by failing to raise it, when it first...