Robert Sawyer v. United States

• Decision Date: 30 April 1906
• Docket Number: No. 553,553
• Citation: 50 L.Ed. 972,26 S.Ct. 575,202 U.S. 150
• Parties: ROBERT SAWYER and Arthur Adams, Plffs. in Err. , v. UNITED STATES
• Court: U.S. Supreme Court

202 U.S. 150

26 S.Ct. 575

50 L.Ed. 972

ROBERT SAWYER and Arthur Adams, Plffs. in Err.,

v UNITED STATES.

No. 553.

Argued April 4, 5, 1906.

Decided April 30, 1906.

[Messrs.

The writ of error in this case brings before this court a judgment of conviction of murder, rendered in the circuit court of the United States for the eastern district of North Carolina.

The plaintiffs in error were indicted at the fall term, 1905, of the United States district court for the eastern district of North Carolina, Wilmington division, for the murder, by shooting, on the 28th day of October, 1905, of E. R. Rumill, captain, John T. Hall, mate, John Falbe, cook, C. L. Smith, engineer, and John S. Coakley, seaman, committed on the high seas and within the jurisdiction of the court wherein the indictment was found, and on board of the American vessel called the Harry A. Berwin. The indictment alleged that after the shooting the deceased were thrown into the sea. Upon the trial of the plaintiffs in error in November, 1905, in the United States circuit court for the eastern district of North Carolina, to which court the indictment had been duly transferred for trial, they were convicted of the murder of the first four named in the indictment. The court told the jury that the defendants were not charged with killing Coakley, and, if charged in the bill, there was no evidence to support the charge.

There is no question made as to the sufficiency of the indictment or of the jurisdiction of the court.

It appeared on the trial that the plaintiffs in error were part of the crew, and, together with one Henry Scott, who was also one of the crew, were the only living persons found on the Berwin when they were arrested by the crew of a small boat, that was put off from a schooner called the Blanche H. King, which was then proceeding on a voyage up the coast from Brunswick, Georgia, to Philadelphia, Pennsylvania, and had arrived at a point about 32 miles southwest from Cape Fear bar. The attention of Captain Hohn W. Taylor, of the schooner, was directed about 9 o'clock in the evening in the month of October, 1905, to a vessel just ahead of him, on account of the manner in which she was carrying her lights, and because she was right in the track of his own vessel. He sent a small boat, manned by several seamen, to the vessel (which proved to be the Berwin), and the boat brought back the plaintiffs in error and Scott, who, on being brought to the deck of the vessel and telling their story, were put in irons by direction of the captain, who then steered his vessel for the nearest port, which was Southport, North Carolina, where the men were delivered to the Federal authorities. Upon the trial of the indictment which was found against the plaintiffs in error, the man Scott was called as a witness, and swore to the murder by the plaintiffs in error while the vessel was at sea, and on or about October 28, 1905.

Scott was subsequently indicted alone for the murders, and was also convicted, the plaintiffs in error being witnesses against him, and they testified that he committed the murders. He has been reprieved by the President, so that he may be again used as a witness against the plaintiffs in error in case of a new trial being granted to them.

Corcoran Thom, George Rountree, and Henry P. Blair for plaintiffs in error.

[Argument of Counsel from pages 152-154 intentionally omitted] Solicitor General Hoyt for defendant in error.

[Argument of Counsel from pages 154-157 intentionally omitted] Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:

The first question to be noticed in this case arises by reason of these facts: When the case was called for trial the clerk proceeded to call the names of the jurors, and the record shows that:

'While the jury was being impaneled several jurors were called, and as each juror appeared he was told by the district attorney to stand at the foot of the panel, without any challenge on the part of the government, and without an opportunity given to defendants to accept, challenge for favor or cause, or to peremptorily challenge any and all of said jurors so stood aside.

'To each and to every action in this respect on the part of the government the defendants promptly and in due time objected, but the court overruled the objections, saying the state practice would be followed, and there was no United States statute on the subject; to which ruling of the court the defendants, by their counsel, then and there duly excepted, and the exceptions were allowed. It appeared that neither the government nor the defense had exhausted all their peremptory challenges when the jury was impaneled.'

The inquiry is whether the court had the power to permit such conditional challenge by the government.

The origin of this practice is stated by Mr. Justice Field in delivering the opinion of the court in Hayes v. Missouri, 120 U. S. 68-71, 30 L. ed. 578-580, 7 Sup. Ct. Rep. 350, 351, It is there said:

'Originally, by the common law, the Crown could challenge peremptorily, without limitation as to number. By act of Parliament passed in the time of Edward the First, the right to challenge was restricted to challenges for cause. But, by a rule of court, the Crown was not obliged to show cause until the whole panel was called. Those not accepted on the call were directed to stand aside. If, when the panel was gone through, a full jury was obtained, it was taken for the trial. If, however, a full jury was not obtained, the Crown was required to show cause against the jurors who had been directed to stand aside; and, if no sufficient cause was shown, the jury was completed from them.'

The question here involved was not directly before the court in that case, but the accuracy of the statement is not questioned. It is not disputed that the practice has prevailed in the state of North Carolina ever since the foundation of the state, and it has also prevailed in South Carolina and Pennsylvania.

In 1790 Congress provided for granting certain peremptory challenges to the defendant (1 Stat. at L. 119, chap. 9), but no peremptory challenge was allowed to the government.

While the government was thus situated in regard to peremptory challenges, the case of United States v. Marchant, 12 Wheat. 480, 6 L. ed. 700, came before the court. The question directly involved was whether persons jointly charged in the same indictment for a capital offense had a right by law to be tried separately without the consent of the prosecutor, and it was held that persons so jointly charged had not that right, but that such separate trial was a matter to be allowed in the discretion of the court. In the course of the opinion, however, which was delivered by Mr. Justice Story, it was stated as follows:

'But a still more direct conclusion against the right may be drawn from the admitted right of the Crown to challenge in criminal cases, and the practice under that right. We do not say that the same right belongs to any of the states in the Union; for there may be a diversity in this respect as to the local jurisprudence or practice. The inquiry here is not as to what is the state prerogative, but, simply what is the common-law doctrine as to the point under consideration. Until the statute of 33 Edw. I., the Crown might challenge peremptorily any juror, without assigning any cause; but that statute took away that right, and narrowed the challenges of the Crown to those for cause shown. But the practice since this statute has uniformly been, and it is clearly settled, not to compel the Crown to show cause at the time of objection taken, but to put aside the juror until the whole panel is gone through. Hawkins, on this point, says (2 P. C. chap. 43, §§ 2, 3), 'if the King challenged a juror before the panel is perused, it is agreed that he need not show any cause of his challenge till the whole panel be gone through, and it appears that there will not be a full jury without the person so challenged. And if the defendant, in order to oblige the King to show cause, presently challenge touts paravaile; yet it hath been adjudged that the defendant shall be first put to show all his causes of challenge before the King need to show any.' And the learned author is fully borne out by the authorities which he cites, and the same rule has been recognized down to the present times.

'This acknowledged right of peremptory challenge existing in the Crown before the statute of 33 Edw. I. and the uniform practice which has prevailed since that statute, to allow a qualified and conditional exercise of the same right, if other sufficient jurors remained for the trial, demonstrate, as we think, that no such power of selecting his jury belongs, or was ever supposed to belong, by the common law, to the prisoner; and that, therefore, he could not demand, as matter of right, a separate trial to enable him to exercise it. In a separate or joint trial he could at any time be defeated by the Crown of such choice, by its own admitted prerogative.'

It is true that the matter involved in the Marchant Case did not call for this statement, as the direct question was not in issue. It was made argumentatively, as one reason for denying the right claimed by defendant in that case. Subsequently the circuit court of the United States in Pennsylvania, in 1830, followed the views expressed in the Marchant Case. United States v. Wilson, Baldw. 78, Fed. Cas. No. 16,730. In that case the right was claimed by the district attorney and denied by counsel for defendant, but was allowed by the court upon the ground that it considered the opinion of the Supreme Court as a recognition of the qualified right of the United States to challenge, and directed the juror to be put aside until the panel was exhausted, declaring that if that should happen and the juror be again called, the United States could not then challenge him without showing cause.

Again, in ...