Tierney v. United States

• Decision Date: 02 March 1922
• Docket Number: 1917.
• Citation: 280 F. 322
• Parties: TIERNEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

280 F. 322

TIERNEY v. UNITED STATES.

No. 1917.

United States Court of Appeals, Fourth Circuit.

March 2, 1922

B. J Pettigrew, of Charleston, W.Va. (Barnhart, Horan & Pettigrew of Charleston, W. Va., on the brief), for plaintiff in error.

J. N Kenna, Asst. U.S. Atty., of Charlestown, W.Va. (L. H. Kelly U.S. Atty., of Charleston, W. Va., on the brief), for the United States.

Before KNAPP, WOODS, and WADDILL, Circuit Judges.

WOODS Circuit Judge.

The defendant, Tom Tierney, was convicted of carrying on the business of a retail liquor dealer without paying the special tax in November, 1918. At the term when he was tried the presiding judge, to facilitate business in the trial of accused persons, ordered the jurors divided into three panels of 12 each, numbered 1, 2, and 3. When a case was to be tried, one of these panels was called in the box. The clerk then examined the 12 on their oaths as to their qualifications. If any were disqualified, their places were filled from the other panels until 12 apparently qualified were obtained. These 12 were then presented to the defendant on trial and the government for the exercise of the right of challenge for cause or peremptory challenge without cause. As the juror challenged retired, another was called to his place and examined as to his qualification. This method proceeded until further challenge was waived or the right exhausted. The 12 jurors remaining in the box were then sworn to try the cause.

When the defendant was called on to exercise his right of challenge in this manner, his counsel, claiming the right to have presented at once 28 qualified jurors, challenged the entire panel of 12 as illegal. This claim and challenge was denied. The impaneling of the jury then proceeded in the method indicated, the defendant each time when called on to exercise his right of individual challenge refusing to do so and repeating the challenge to the whole panel.

The state statute allows in felony cases to the defendant 6 peremptory challenges and to the state 2. The federal statute allows 10 and 6. Section 5579 (chapter 159, Sec. 3) of the West Virginia Code requires a panel of 20 jurors to be qualified and presented for challenge. But there is no state or federal statute or rule of the District Court requiring 28; nor was there any federal statute or formal rule of the federal court on the subject.

The essentials to the free exercise of the right of challenge are: First, that the defendant shall have access to the list of jurors; and, second, that he shall have presented to him face to face for challenge jurors ascertained to be legally qualified. There is no complaint that the defendant did not have a list of all the jurors, but the contention is that 28 qualified jurors should have been presented together for challenge instead of 12.

At common law the usual practice was to call each juror separately, ascertain his qualifications and present him for challenge. Layers' Case, 16 How. St. Trials, 135 (1722); Brandreth's Case, 32 How. St. Trials, 755 (1817); Regina v. Frost, 9 Car. & P. 129-137; United States v. Aaron Burr, 25 Fed.Cas. 55-83, No. 14,693; 1 Thompson on Trials, 107. But the observance of that method is not essential. Nor is the federal court bound to follow the state statute or the usual practice of the state court. The District Court was therefore free to order any method in presenting qualified jurors which did not impair the free exercise of the right of challenge. Pointer v. United States, 151 U.S. 396, 14 Sup.Ct. 410, 38 L.Ed. 208; Lewis v. United States, 146 U.S. 378, 13 Sup.Ct. 136, 36 L.Ed. 1011; St. Clair v. United States, 154 U.S. 134, 147, 148, 14 Sup.Ct. 1002, 38 L.Ed. 936; Hendrikson v. United States, 249 F. 34, 161 C.C.A. 94.

The opportunity for comparison of jurors is greater when 12 are presented at once than under the common-law method of presenting each juror separately. The complaint against either method is met by the principle, so often repeated, that the right of challenge is a right of rejection, not of choice. The whole matter is so fully and clearly decided against the contention of the defendant in the opinion of the court in St. Clair v. United States, 154 U.S. 134, 147, 148, 14 Sup.Ct. 1002, 38 L.Ed. 936, that further discussion or citation seems unnecessary.

Even if the jurors had been improperly presented, the defendant, not having exhausted his peremptory challenges could not complain of the error. Sawyer v. United States, 202 U.S. 150-165, 26 Sup.Ct. 575, 50 L.Ed. 972, 6 Ann.Cas. 269; Conn. Mutual Life Ins. Co. v. Hillmon, 188 U.S. 208, 121, 23 Sup.Ct. 294, 47 L.Ed. 446.

We have recently held that a defendant, indicted for violation of the liquor laws of the United States, may be asked on cross-examination if he has not been guilty of other like offenses, on the issue of the credibility of the witness. Fields v. United States, 221 F. 242, 245, 137 C.C.A. 98; Christopoulo v. United States, 230 F. 788, 791, 145 C.C.A. 98; Wharton's Crim. Ev. p. 1666; 1 Wigmore, p. 444.

Affirmed.

WADDILL, Circuit Judge (dissenting). The accused was indicted, tried, and convicted for a felony, and sentenced to the penitentiary for the period of one year and a day, and fined $1,000.

Section 287 of the Judicial Code (Comp. St. Sec. 1264) provides that upon the trial of a criminal offense, in cases of treason or capital offense, the defendant shall be entitled to 20 and the United States to 6 peremptory challenges. On the trial of any other felony, the defendant is entitled to 10 and the United States to 6 peremptory challenges; and in all other civil and criminal cases, each party shall be entitled to 3 peremptory challenges.

The crucial question involved is whether the defendant in this case was accorded his right of peremptory challenge contemplated by this statute. As shown by the majority opinion, 36 jurors were drawn for the term, divided into three panels, Nos. 1, 2, and 3, respectively. Upon calling the case, jury No. 1, consisting of 12 men, was placed in the box, and examined as to their qualifications to serve, and upon objection by the government 3 of the jurors were excused, and 3 others chosen in their place, and, no challenge for cause being presented, the defendant was called upon to exercise his right of peremptory challenge to the 12 jurors thus selected. He thereupon, as he had done as soon as jury No. 1 was called, asked and insisted upon being furnished with a list of 28 jurors, from which the jury should be selected, and insisted that this right should be accorded him before being required to exercise his right of peremptory challenge, in order to intelligently make the same. This the court refused, and the 12 jurors then in the box were sworn to try the case, to all of which defendant duly excepted.

Was the defendant denied any right to which he was entitled by this method of selecting the jury? The impaneling of the jury, and the manner and method of exercising the right of challenge on the part of the accused, in the courts of the United States, is what is involved here. How this should be done seems to be fairly settled by decisions of the federal courts of last resort, as shown by three comparatively recent cases treating particularly with the subject, viz.: Lewis v. United States, 146 U.S. 370, 13 Sup.Ct. 136, 36 L.Ed. 1011; Pointer v. United States, 151 U.S. 396, 14 Sup.Ct. 410, 38 L.Ed. 208; St. Clair v. United States, 154 U.S. 134, 14 Sup.Ct. 1002, 38 L.Ed. 936-- to which reference will be especially made. Three questions are definitely settled by these decisions, which may be briefly stated as follows:

(A) That while the qualifications and exemptions of jurors to serve in the courts of the United States are controlled by the laws of the state in which such courts are held, the laws and usages of the state relating to designating and impaneling jurors are not controlling in the courts of the United States, save as the same may be adopted in said courts by standing rule, or by special order in a particular case. United States v. Shackelford, 18 How. 588, 15 L.Ed. 495; Pointer v. United States, 151 U.S. 407, 14 Sup.Ct. 410, 38 L.Ed. 208, supra; United States v. Richardson (C.C.) 28 F. 61, 69.

(B) That the United States District Courts may by standing rule, or special order in a particular case, designate and prescribe the method of impaneling juries for the trial of criminal cases in such courts.

(C) Where the District Courts have neither by standing rule, adopted the state practice regarding the impaneling of jurors, or prescribed a method of their own, or made a special order in a particular case, the manner and method of impaneling a jury is within the discretion of such courts. But this authority must be exercised subject to the restrictions of Congress as prescribed, and also to such limitations as are recognized by the settled principles of criminal law, to be essential in securing impartial juries for the trial of offenses, and, as differently stated in Lewis v. United States, 146 U.S. 379, 13 Sup.Ct. 139, 36 L.Ed. 1011, supra, subject to the condition 'that such rules should be adapted to secure all the rights of the accused.'

In this case there was no standing rule adopting the state practice as to impaneling juries. There was no standing rule prescribing the practice in the federal court, nor was there any special order entered prescribing what such practice in this instance should be. The court at the trial proceeded in the absence of such rules and regulations to impanel the jury. This case turns upon whether or not, in the exercise of its discretion under such circumstances, error was committed prejudicial to the accused, or which hindered or embarrassed him in the exercise of his...