Morris v. United States

• Decision Date: 17 March 1908
• Docket Number: 2,677.
• Citation: 161 F. 672
• Parties: MORRIS v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

161 F. 672

MORRIS v. UNITED STATES. ^[1]

No. 2,677.

United States Court of Appeals, Eighth Circuit.

March 17, 1908

Shepard Barclay (Thomas T. Fauntleroy, on the brief), for plaintiff in error.

Jesse W. Barrett, Special Asst. U.S. Atty.

Before SANBORN and ADAMS, Circuit Judges, and PHILIPS, District Judge.

PHILIPS District Judge.

The plaintiff in error (hereinafter, for convenience, designated the defendant) was indicted and convicted on various counts for the violation of certain provisions of the statute respecting the manufacture and sale of oleomargarine. Act Aug. 2, 1886, c. 840, 24 Stat. 209; volume 2, p. 2228, c. 7b U.S. Comp. St. 1901. Some of the counts on which convictions were had were predicated of the amendment to section 3 of said act. 32 Stat. 194, approved May 9, 1902, c. 784, 32 Stat. 194. The eighth count on which conviction was had was under section 6 of said chapter 7b. The tenth count on which the defendant was convicted was based upon another provision of the statute, hereinafter adverted to. The penalty imposed by the statute for the offenses embraced within the first five counts of the petition on which convictions were had is a fine, without imprisonment. The penalty imposed by section 6 of the act, on which the eighth count was founded, is a fine of not more than $1,000, and imprisonment not more than two years. Under the tenth count of the indictment the statute authorizes a fine of not more than $100 and imprisonment not more than one year. On each of the said first five counts, the court imposed a fine of $1,000. On the eighth count, the sentence was a fine of $1,000 and imprisonment in the United States penitentiary at Ft Leavenworth for two years. On the tenth count, the sentence was a fine of $100 and 24 hours in jail.

At the opening of the trial, counsel for the defendant moved that the district attorney be required to elect upon which of the counts he would prosecute. The denial of this motion is assigned for error. The contention made is that the several offenses are so incongruous in law as not to admit of their joinder in the same indictment under the provisions of section 1024, Rev. St. (U.S. Comp. St. 1901, p. 720). The assumption of counsel is that all the counts, save the eighth, are for misdemeanors, while the eighth is a felony. If, however, all the offenses charged constitute only misdemeanors under the federal statute, they would be 'of the same class of crimes or offenses,' being violations of the same statute 'defining butter' also imposing a tax upon and regulating the manufacture, sale, etc., of oleomargarine'; and as such, it was permissible to join the several offenses in one indictment, setting forth the different acts in separate counts. Pointer v. U.S., 151 U.S. 396, 400, 14 Sup.Ct. 410, 411, 38 L.Ed. 208. The only limitation, which is addressed largely to the discretion of the trial court, upon such joinder of several offenses in one indictment is that their multiplication ought not to be so great as to tend 'to confound the accused in his defense, or to prejudice him as to his challenges in the matter of being held out to be habitually criminal to the distraction of the attention of jury. ' In such case, the court might confine the indictment to so many of the offenses as would prevent such prejudice. McElroy v. U.S., 164 U.S. 80, 17 Sup.Ct. 31, 41 L.Ed. 355.

It is conceded that, inasmuch as the defendant could be sentenced under the eighth count to imprisonment in the penitentiary the offense is an infamous crime, within the purview of the fifth amendment to the federal Constitution. Mackin et al. v. United States, 117 U.S. 348, 6 Sup.Ct. 777, 29 L.Ed. 909. It does not follow, however, that such result designates the offense a felony so as to take it out of 'the same class of crimes or offenses' as those embraced in the other counts of the indictment, which are admittedly mere misdemeanors.

Without reviewing the authorities, as this would be but a work of supererogation, the following summary may be regarded as the settled law within the federal jurisdiction: (1) There are no crimes or offenses cognizable in the federal courts, outside of maritime or international law or treaties, except such as are created and defined by acts of Congress; (2) where the statute designates and denounces a crime of the character or class which at common law was regarded as a felony without naming it as a misdemeanor, such as burglary, robbery, et id omne genus, which at common law had a well-defined meaning as a felony, these are classed as felonies; (3) although the offense proscribed by the state may at common law come within the category of a felony, yet if termed by the statute a misdemeanor, it is not to be regarded in federal procedure as a felony; (4) when Congress adopts a state statute or law as to an offense made a felony by the state law, it may be so treated by the federal court. Ex parte Wilson, 114 U.S. 417, 5 Sup.Ct. 935, 29 L.Ed. 89; Bannon et al. v. United States, 156 U.S. 464, 15 Sup.Ct. 467, 39 L.Ed. 494; Reagan v. United States, 157 U.S. 301, 15 Sup.Ct. 610, 39 L.Ed. 709; Considine v. United States, 112 F. 342, 50 C.C.A. 272; Hume v. United States, 118 F. 689, 698, 55 C.C.A. 407. Offenses proscribed under the oleomargarine act were unknown to the common law. They are solely the creatures of the act of Congress. As they are not designated as felonies by the statute, they are only statutory misdemeanors, entitling the defendant to only three peremptory challenges to the trial jury. Considine v. United States, supra. This assignment of error, therefore, must be overruled.

Error is assigned to the action of the court in overruling the defendant's challenge to certain jurors. The regular panel having been exhausted, the following occurred in making inquiries of the talesmen: Defendant's counsel asked, 'Have any of you served upon a jury within the past year?' to which some of the jurors replied in the affirmative; who were then challenged for cause, 'on the ground that they had served as jurors within the past year. ' The challenge was overruled, the court adding:

'Let the record show that these jurors have not served within twelve months. They cannot serve more than once in twelve months in any case, except during the present term of this court, they being members of the jury at this term.'

The meaning of this was that the jurors had been in attendance at that term of court, and had, perhaps, been discharged, which did not disqualify them on the ground that they had been jurors within the 12 months preceding, within the meaning of the statute. Thereupon, counsel for the defendant said:

'Our contention is that they are not entitled to serve under the ruling of the Missouri Supreme Court.'

From which it is manifest counsel conceived that the provisions of the state statute respecting the qualifications of jurors obtained in this respect in the federal courts. In other words, if a juror had served on a state jury within the year next preceding, he would be disqualified from serving within that year on a jury in the federal court.

This is a misconception of the law. It is the well-recognized rule that where Congress has spoken touching a matter of procedure or regulation within its constitutional competence, it is exclusive of any state statute or regulation of the subject-matter. Conn. Mut. Life Ins. Co. v. Schaefer, 94 U.S. 458, 24 L.Ed. 251; White v. Wansey, 116 F. 347, 53 C.C.A. 634; Travis v. Ins. Co., 104 F. 486, 43 C.C.A. 653. This rule has been held to apply to the matter of impaneling jurors. Walker et al. v. Collins et al., 50 F. 737, 1 C.C.A. 642; Pointer v. U.S., 151 U.S. 397, 14 Sup.Ct. 410, 38 L.Ed. 208; Ex parte Fisk, 113 U.S. 713, 5 Sup.Ct. 724, 28 L.Ed. 1117. Congress has spoken on this subject. Section 812, vol. 1, Comp. St. 1901, p. 627, declares that:

'No person shall be summoned as a juror in any Circuit or District Court more than once in two years, and it shall be sufficient cause of challenge to any juror called to be sworn in any case that he has been summoned and attended said court as juror at any term of said court held within two years prior to the time of such challenge.'

By the amendment of June 30, 1879, c. 52, Sec. 2, 21 Stat. 43 (U.S. Comp. St. 1901, p. 624), the two years' provision was reduced to one year. Clearly enough, the statute has exclusive reference to the like service performed in the United States court, for it distinctly says the qualification shall extend 'to any juror called to be sworn in any cause that he has been summoned and attended said court. ' Evidently, the term 'said court' refers back to the Circuit or District Court of the United States where the jurors are called to serve. He who complains of an erroneous ruling must make that error appear affirmatively. The question asked and answered should have been followed up with the further inquiry as to whether or not the juror had been summoned and attended within the year preceding in that court. This objection, therefore, was rightly overruled.

Complaint is made of the action of the court in ruling that it devolved upon the defendant to show that he had paid the tax as a manufacturer of oleomargarine, if he so claimed. The government introduced the witness Buehrman, the deputy collector of revenue, at St. Louis, who testified that the defendant had made application for what is termed a license as a retailer of oleomargarine at certain places covered by the indictment. To this evidence, counsel for the defendant first objected on the ground that 'there is no statement on which one of the different sorts of license the party engaged in that business was referred to. ' After some further colloquy between counsel and the court as to what he...