Schackow v. Government of the Canal Zone, 9097.

• Decision Date: 27 December 1939
• Docket Number: No. 9097.,9097.
• Citation: 108 F.2d 625
• Parties: SCHACKOW et al. v. GOVERNMENT OF THE CANAL ZONE.
• Court: U.S. Court of Appeals — Fifth Circuit

108 F.2d 625 (1939)

SCHACKOW et al. v. GOVERNMENT OF THE CANAL ZONE.

No. 9097.

Circuit Court of Appeals, Fifth Circuit.

December 27, 1939.

Jones T. Prowell, of New Orleans, La., and Chauncey P. Fairman of Cristobal, Canal Zone, for appellants.

Rene A. Viosca, U. S. Atty., and Robert Weinstein, Asst. U. S. Atty., both of New Orleans, La., and J. J. McGuigan, U. S. Atty., of Ancon, Canal Zone, for appellee.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

McCORD, Circuit Judge.

Hans Heinrich Schackow and Ernest Robert Edward Kuhrig were tried and convicted in the District Court for the Canal Zone for unlawfully obtaining information affecting the national defense in violation of 50 U.S.C.A. § 31. Schackow and Kuhrig were tried separately but have jointly appealed.

All jurors who served on the two juries were either tenants or employees of the government. The appellants, relying on Title 6 Canal Zone Code, Sec. 350, contend that it was error to permit these employees and tenants to serve because of the existence of the relationship of landlord and tenant and master and servant between the jurors and the government.

A large majority of the citizens residing in the Canal Zone are tenants or employees of the government or one of its agencies. A careful reading of the enactment will disclose that in establishing a jury system for the Canal Zone, Congress was cognizant of the fact that jurors must, of necessity, be drawn almost entirely from tenants and employees. This clearly appears from Title 7 Canal Zone Code, Sec. 34, 48 U.S.C.A. § 1347, where it is provided that jurors may be drawn from among certain citizens and employees living in territory contiguous to the Canal Zone. To give the statute the construction insisted upon by the appellants would be tantamount to destruction of the jury system in the Canal Zone. Such a construction may not be read into the enactment. The Canal Zone Code does not disqualify employees or tenants of the government from serving as jurors in criminal cases. This relationship was not ground for peremptory challenge. Moreover, the court exercised great care to see that the substantial rights of the defendants were protected, and in both cases each juror was interrogated to ascertain if he possessed interest, bias, or prejudice before he was accepted. Cf. United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78.

The appellants contend that certain articles published in newspapers outside the Canal Zone created an actual bias of individual jurors. The contention is without merit. The court carefully questioned each juror as to bias and whether or not they had been prejudiced by such articles, and the record fails to disclose that any juror was biased or prejudiced.

The appellants further complain that they were not allowed sufficient time in which to properly prepare for trial. The record shows that the offense was committed on October 16, 1938, and that a preliminary hearing was held on October 20th. The information was filed in the District Court on November 5th, and the first trial was not begun until December 7, 1938. This would appear to be ample time to prepare for trial. Moreover, the denial of a motion for continuance lies within the sound discretion of the court, and it does not appear that discretion was abused in this case. Isaacs v. United States, 159 U.S. 487, 489, 16 S.Ct. 51, 40 L.Ed. 229.

On the morning of October 16, 1938, Schackow, Kuhrig, Gilbert Wilhelm Groos, and Miss Ingeborg Waltraunt Gutman, drove from Cristobal, Canal Zone, to Fort Randolph, a government military reservation. The entrance to the reservation was posted with signs prohibiting trespassing and showing that it was a government reservation. The sentry stopped the party at the gate, asked their destination, and inquired if they had cameras. The sentry was told that they had no camera and that they were going to the post exchange restaurant. At that time a high speed camera was in a bag on the floor of the car, and both Schackow and Kuhrig testified that their intention was to go all the way out to Galeta...