Schwartzberg v. United States

• Decision Date: 13 March 1917
• Docket Number: 117.
• Citation: 241 F. 348
• Parties: SCHWARTZBERG et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

241 F. 348

SCHWARTZBERG et al. v. UNITED STATES.

No. 117.

United States Court of Appeals, Second Circuit.

March 13, 1917

[Copyrighted Material Omitted]

Walter J. Carlin, of New York City, for plaintiff in error Alexander.

Frank Hendrick, of New York City, for plaintiffs in error Schwartzberg and Goldman.

Andrew Foulds, Jr., of New York City, for all plaintiffs in error.

H Snowden Marshall, U.S. Atty., and Frank M. Roosa, Asst. U.S Atty., both of New York City.

Before COXE, ROGERS, and HOUGH, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

Of the assignments of error herein, those will be considered which raise the following questions, viz.: (1) That the defendants were not permitted to exercise the right of peremptory challenge of jurors in the manner prescribed by law. (2) That some at least of the plaintiffs in error should have been accorded a separate trial. (3) That the counts under section 215 do not charge a crime against the United States, and no such offense was proven. (4) That the evidence did not warrant conviction on the conspiracy count.

1. Section 287 of the Judicial Code gives 10 peremptory challenges to 'the defendant' in causes such as this, with the further provision that:

'In all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges.'

When the 14 defendants were arraigned, they appeared by numerous counsel, who (presumably with the assent of their clients) refused to unite, or act jointly, in respect of choosing a jury. It is not denied, nor doubted, that, had they agreed to speak on this subject as one man, or through one attorney, they would collectively have been entitled to 10 peremptory challenges, and both the letter and spirit of the statute been satisfied.

After the above-noted action, or refusal to act, on defendants' part, the trial judge announced that he would entertain one peremptory challenge for each defendant, or 14 in all, with the result that every defendant had one challenge (if their apparent differences were pressed to their limit), but 'the parties' defendant had collectively more challenges than the statute required. Thereupon some defendants peremptorily challenged more than once, and such efforts (not joined in by all) were disallowed.

The assignments of error on this head, substantially assert that either every defendant was entitled to 10 challenges, or that all challenges,, not made by them all acting jointly, were illegal. Of the first part of this proposition, it is enough to say that no such asserted right is possible under the statute. It amounts to getting exactly what Congress declared a plurality of defendants should not have. The impracticability of such procedure has been pointed out in State v. Cady, 80 Me. 413, 14 A. 940; but it is enough in this case to indicate its illegality.

The idea (at the bottom of the second branch of argument) that any one of several defendants may, by refusing to act jointly in respect of challenges, render the action thereon of his codefendants illegal, has no basis in reason. It assumes that the parties to a jury trial have some kind of right or proprietorship in the several members of the panel, which is but another way of urging that right to select jurors which was finally rejected as unsound in U.S. v. Marchant, 12 Wheat. 480, 6 L.Ed. 700.

The present federal statute (in the respect under consideration) is much older than the Judicial Code, having passed from a statute of 1865 into section 819, Rev. St. (Comp. St. 1916, Sec. 1264). U.S. v. Hall (C.C.) 44 F. 883, 10 L.R.A. 323. It certainly enlarged the common law, in that peremptory challenges were given in civil causes (Stone v. Segur, 11 Allen (Mass.) 568), and removed that doubt in respect of criminal trials not involving capital punishment, reflected in the older writers, and many cases (Blackstone, Bk. 4, p. 353; Gray v. Reg., 11 Cl. & F. 427; U.S. v. Shackleford, 18 How. 588, 15 L.Ed. 495). But it did not change nor seek to alter the accepted method of interpreting the word 'party,' nor the rights of several defendants to the same indictment. Such defendants have always been regarded as one party, there is a legal obligation on them so to act, and the law (absent any statutory change) insists on so treating them. The very decisions relied on by these plaintiffs in error sustain this historical position. State v. Cady, supra; People v. McCalla, 8 Cal. 301; People v. O'Laughlin, 3 Utah, 133, 1 P. 653; Cochran v. U.S., 14 Okl. 108, 76 P. 672; State v. Jacobs, 106 N.C. 695, 10 S.E. 1031. And see, generally, Thompson & M. on Juries, p. 299 et seq.

It results that the contention becomes this, viz. that a body of defendants (in civil or criminal causes), or any one of them, may, by refusing to act in the manner prescribed by statute and imposed by historic interpretation, render any peremptory challenge impossible, or the exercise of the right by others illegal. Whether in this case the trial judge would have been justified in treating defendants' refusal to act jointly as a surrender or waiver of all peremptory challenges need not be considered; he chose the gentler method of exceeding the statutory limit, and, in favor of the accused, granted to each in severalty a reasonable share of the right they had jointly declined.

This was a proper exercise of discretion, furnishing no ground for complaint, fundamentally because (as above stated) challenge is but the right to reject up to the legal limit, and such right does not inhere in any particular one of a plurality of either plaintiffs or defendants, but in the defendant or plaintiff party considered as a unit. When that...