Marrin v. United States

• Decision Date: 27 February 1909
• Docket Number: 20-1908.
• Citation: 167 F. 951
• Parties: MARRIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

167 F. 951

MARRIN v. UNITED STATES.

No. 20-1908.

United States Court of Appeals, Third Circuit.

February 27, 1909

V Gilpin Robinson, for plaintiff in error.

J Whitaker Thompson, U.S. Atty.

Before DALLAS and GRAY, Circuit Judges, and ARCHBALD, District Judge.

ARCHBALD District Judge.

The defendant was convicted of a conspiracy to defraud by the use of the mails. He was engaged with others, in conducting what was known as the 'Storey Cotton Exchange,' with which a large number of persons in different parts of the country were induced by correspondence to intrust their money for the purpose of speculating in cotton, upon highly inflated expectations, skillfully aroused, of altogether impossible profits; the United States mails being used to advertise and carry on the business. The fraudulent character of the enterprise and the defendant's connection with it were abundantly shown, and the only question is whether he was duly convicted. The case was one of considerable public interest, in view of the extended character of the swindle and the number of persons affected, and prominent reports of it appeared in the Daily Press of Philadelphia, where it was tried. In the main these were unobjectionable, although some of the papers were not so circumspect as they might be. But in one, which arrogated to itself the credit of having unearthed the fraud and brought the defendant and his associates to justice, highly sensational accounts were indulged in, commenting on and distorting the evidence, as well as referring to matters of which no evidence was given in a way that was calculated to prejudice the defendant, and to impede the administration of justice by standing in the way of a fair and impartial trial, and they might well have been made the ground of proceedings for contempt. The defendant took no notice of these articles for a time, but, growing worse as the trial progressed, it was finally concluded by his counsel that they ought not to be passed over, and they were accordingly brought to the attention of the court by a motion to withdraw a juror and continue the case. The trial was thereupon stopped and the jurors interrogated, by which it appeared that six of them had seen and read some, if not all, of the articles complained of. But the rest had not; and all who had with one accord declared that they were not and would not be influenced by them, taking the evidence as given by the witnesses, and not from the newspapers. Upon this showing the defendant's counsel, after consulting with his client, announced that, although indignant at the occurrence, he would not press his motion, but would put himself in the hands of the court, as he expressed it. The motion was thereupon overruled, and the trial proceeded with; and, having resulted in a conviction, the case is now brought here on error.

As already stated, the newspaper articles complained of were outrageous in character, and the indignation of counsel with regard to them was fully justified. But the action of the court must nevertheless be sustained in overruling the motion. While it was within the discretion of the trial judge to withdraw a juror and continue the case, he was certainly not required to do so in the face of the declaration by the jurors who had read the articles that they would have no influence with them in arriving at a verdict. Even where a juror on his voir dire, in a homicide case, where the rules are held the strictest, admits to having formed an opinion as to the guilt or innocence of the accused from reading newspaper accounts of the transaction, and that opinion is so fixed that it would take evidence to remove it, yet, if the juror, at the same time, is able to say, and the court is so convinced, that if sworn as a juror he can discard this opinion and decide the case solely on the evidence as it is given by the witnesses, he is qualified to act, and a challenge for cause will not be sustained. 17 Am. & Eng. Cyc. Law, 2d Ed. 1147; Commonwealth v. Spahr, 211 Pa. 542, 60 A. 1084. This being the rule in selecting a jury before trial, much more is it to prevail afterwards, when the evidence is all in, and the case is about to go to the jury, and the complaint is that they have been exposed to improper newspaper influence, the effect of which upon them they explicitly deny. It is true that it may be a question how far a person is able to measure or dispel the bias to which he has been subjected, particularly in the case of articles so virulent and persistent as here. But, there being no other test, the matter has largely to be submitted to his own judgment; and, where attention has been called to it by an investigation such as was conducted here, even the ordinary juror, and much more the conscientious one, would be careful to try and exclude any suspicion of influence, with a reasonable chance of success. It was therefore a matter for the court in its discretion on the showing made to grant or refuse the motion to withdraw a juror. It was not bound to do so, so as to make a refusal of it an abuse of discretion of which we can lay hold.

It is said, however, that the court did not exercise the discretion vested in it, as is shown by the opinion denying a new trial, where it is admitted that the articles were calculated to prejudice the defendant, and that he would have been entitled to have a juror withdrawn if he had insisted on it; the mistake being made by the court in supposing that he did not. But it is clear from the record that the defendant did not press his motion, if, indeed, he did not in effect withdraw it. The court so understood it, as appears from the opinion referred to, which, if capable of being resorted to for one purpose, is admissible generally. Nor is this at variance with the record proper. As is there shown, after the examination of the jurors had disclosed that, according to their statement, the newspaper articles had had no effect upon them, it was said by Mr. Robinson, addressing the court:

'I am put in an exceedingly delicate position, and so is the defendant. He says that in the face of the assurance that is given by the jury he does not feel as if he ought to press for the withdrawal of a juror. Of

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