McHenry v. United States

• Decision Date: 07 November 1921
• Docket Number: 3540.
• Citation: 276 F. 761
• Parties: McHENRY v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

276 F. 761

McHENRY v. UNITED STATES.

No. 3540.

United States Court of Appeals, District of Columbia.

November 7, 1921

Submitted October 3, 1921.

Appeal from the Supreme Court of the District of Columbia.

S. McC. Hawken and G. F. Havell, both of Washington, D.C., for appellant.

J. E Laskey, Peyton Gordon, and L. H. Vandoren, all of Washington D.C., for the United States.

SMYTH Chief Justice.

The defendant was indicted for the murder of a police officer who was attempting to arrest him for a homicide which had been committed about an hour before. He was tried, convicted, and sentenced to be executed. Complaining of the trial court defendant makes 12 assignments of error, but groups them in argument under five heads. We shall deal with each group separately.

The first relates to the refusal by the court of defendant's request to confine the jury during the trial, and to its action in overruling a motion made by the defendant to withdraw a juror because of a headline which appeared in a city newspaper.

Whether or not the law requires a jury in a homicide case to be confined by themselves during the trial presents a question which has not been passed upon directly by this court. It is conceded that the old common law required jurors in such cases to be confined and that it was the practice to do so in this District until recently. There were many practices of the old common law with respect to the treatment of jurors which were very harsh: They were kept together during the trial, and on submission of the case were placed in charge of a sworn officer, without food, drink, fire, or light, except by permission of the court, and if they did not agree before the court adjourned they were carried around the circuit from place to place in a cart. This was for the purpose of coercing them into agreement, as well as to keep them free from improper influences. Jones v. People, 6 Colo. 452, 45 Am.Rep. 526; State v. Hornsby, 8 Rob.(La.) 554, 41 Am.Dec. 305; 16 R.C.L. 306. No one will contend, we think, that such treatment would be tolerated in modern times. In that respect the old law has been greatly modified, as is shown by the carefully prepared brief of appellant's counsel. In some jurisdictions the jury in capital cases are required by statute to be kept secluded from all communications with the public during the trial; in others the courts hold that under the common law as understood by them the jurors may be permitted to separate; and in still others the course to be pursued is placed in the sound discretion of the court.

We learn from United States v. Woods, 4 Cranch, C.C. 484, Fed. Cas. No. 16,760, that the judges in this District as early as 1834 were in doubt as to what the law on the subject was. And the question has remained unsettled ever since. In Stout v. State, 76 Md. 317, 330, 25 A. 299, 303, a capital case, decided in 1892, Mr. Chief Justice Alvey, speaking for the court, said that it was not error to permit the jury to separate, but added:

'Of course, the separation should only be allowed when attended with those precautions and safeguards necessary to secure entire freedom from approach or external influence of any kind. * * * But each case rests upon its own peculiar circumstances, and is within the sound discretion of the trial court, and is therefore not the subject of appellate review, except where it is affirmatively shown that the party has been prejudiced by the action of the court.'

We get our common law immediately from Maryland (Code, Sec. 1), and this decision indicates the view of the highest court of that state as to what the common law is on the point we are considering.

Our attention is called to state decisions and decisions of inferior federal courts on the subject which appear to be in conflict with the holding of the Maryland court, but we need not concern ourselves about them, because, as we see it, the question has been definitely settled by the Supreme Court of the United States in Holt v. United States, 218 U.S. 245, 251, 31 Sup.Ct. 2, 54 L.Ed. 1021, 20 Ann.Cas. 1138. In that case Holt was convicted of murder committed within a military reservation which was under the exclusive jurisdiction of the United States, and was sentenced to imprisonment for life. The jury were allowed to separate during the trial, but were cautioned by the court that they must refrain from talking about the case in any way, and avoid receiving any impressions as to the merits, except from the proceedings in court. The defendant filed an affidavit, which was not denied, that members of the jury had said that they had read the daily papers having articles on the case while the trial was going on, and the articles were set forth. The court remarked that where jurors were permitted to separate it was safe to assume that they saw something of the public press, and the question was whether or not, under this assumption, error had been committed in failing to keep the jury in the custody of the marshal. Disposing of the matter the court said:

'As to his (the judge's) exercise of discretion, it is to be remembered that the statutes or decisions of many states expressly allow the separation of the jury even in capital cases. Other states provide the contrary. The practice has varied, with perhaps a slight present tendency in the more conservative direction. If the mere opportunity for prejudice or corruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day'

-- and concluded thus:

' * * * We do not see in the facts before us any conclusive ground for saying that his (the judge's) expressed belief that the trial was fair and that the prisoner has nothing to complain of is wrong.'

This means that it is in the discretion of the court to permit the jury to separate in a homicide case, and that his action in that respect will not be reviewed, unless it appears affirmatively that prejudice resulted to the defendant.

In this case, immediately after the jury was sworn, the trial justice cautioned them that during their separation they must not discuss the case with any person whatever, or permit any person to come and discuss the case with them, and must not read anything they might see in the press with regard to the case. He said they could tell by the headlines whether or not there was any reference to the case in any paper that might come into their hands. These instructions were to be followed, he urged, so that they could hear the testimony unbiased and as though they had actually been incarcerated. He reminded them that they were men of intelligence, who knew their duty; that they had taken an oath to try the defendant according to the law and the evidence, and that they could not do this if they listened to any outside influence whatever; and, finally, he assured them that he trusted them as men of honor, under oath, to do their duty. No contention is made that any member of the jury violated these instructions, but it is said that the court permitted them to read the headlines, and that, since the following headline, 'Prosecution Charges Boy Slayer of Two Here Killed Man Near Boston,' appeared in one of the city papers during the trial, there is a presumption that some of the jurors read it, and hence that prejudice resulted to the defendant. There was no proof that any of them had read it. We may assume that they saw something of the public press, as was said in the Holt Case, but not that they saw any particular article in a particular newspaper. The mere opportunity to see it raises no presumption that it was seen.

During the trial the headline was brought to the attention of the trial justice out of the hearing of the jury and a motion was made to withdraw a juror because of it. The motion was overruled, and we think properly, because, as we have already said, there was no evidence that the headline had been seen by any member of the jury. Even if there was, our holding would be the same. There is nothing in it which would be likely to influence the jury. It does not say that the 'Boy Slayer' referred to had killed another man, but that the prosecution charged him with doing it. Intelligent and conscientious jurors, having in mind the strong admonition of the court, would not be influenced in their verdict by such a statement. In Reynolds v. United States, 98 U.S. 145, 155 (25 L.Ed. 244), Mr. Chief Justice Marshall is quoted as having said in Burr's Trial that--

'Light impressions, which may fairly be presumed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of the testimony, constitute no sufficient objection to a juror.'

See also United States v. Reid et al., 12 How. 361, 366, 13 L.Ed. 1023; Colt v. United States, 190 F. 305, 310, 111 C.C.A. 205; State v. Cucuel, 31 N.J.Law, 249; People v. Leary, 105 Cal. 486, 39 P. 24; People v. Gaffney (N.Y.) 14 Abb.Pr.(N.S.) 36.

Testimony was admitted over the objection of the defendant which tended to show that, about an hour before the killing of the officer, the defendant had killed and robbed one Mulcare, a merchant, in his place of business, in this city. For the purpose, as stated, of preventing the details of the crime from getting to the jury, the defendant offered to admit that at the time of the shooting of the officer he was suspected of having committed a felony, that the officer knew it, and that he had a right to arrest him. He also moved to strike out so much of his confession as related to what occurred in the Mulcare store at the time of the robbery. The offer was rejected and the motion overruled. These actions of the court are assigned as the second group of errors.

The testimony objected to was given...