United States v. Brandt, Crim. No. 21076.

• Court: U.S. District Court — Northern District of Ohio
• Writing for the Court: McNAMEE
• Citation: 139 F. Supp. 362
• Parties: UNITED STATES of America, Plaintiff, v. Joseph BRANDT et al., Defendants.
• Decision Date: 29 July 1955
• Docket Number: Crim. No. 21076.

139 F. Supp. 362

UNITED STATES of America, Plaintiff,
v.
Joseph BRANDT et al., Defendants.

Crim. No. 21076.

United States District Court N. D. Ohio, E. D.

July 29, 1955.

139 F. Supp. 363

Sumner Canary, U. S. Atty., Cleveland, Ohio, for the Government.

Yetta Land, Cleveland, Ohio, and Hymen Schlesinger, Pittsburgh, Pa., for defendants.

McNAMEE, District Judge.

At the time the grand jury was drawn on September 23, 1953 there were 353 names in the jury box. These names were placed in the box in March, 1952 and prior thereto. The defendants claim that by reason of death, illnesses, disabilities, and removals from the district there were less than 300 names of persons who were qualified for jury service at the time the grand jury was drawn.

No proof has been offered in support of the alleged number of disqualifications, but defendants request the court to fix a time for the taking of testimony on this issue. Such a hearing, entailing the examination of countless witnesses as to the competency and eligibility on September 23, 1953 of numerous prospective jurors, would be of inordinate length. But the request is not refused on this ground. It is denied because I am of the opinion that even if it were demonstrated by evidence that less than 300 of the 353 persons whose names were in the box were qualified to serve as jurors on September 23, 1953, this fact would not warrant a dismissal of the indictment. Defendants make no claim that they were prejudiced by this alleged deficiency. More importantly, they make no offer to prove that less than 300 of the persons whose names were in the box possessed the requisite statutory qualifications at the time they were selected for jury service by the clerk and commissioner.

Section 1864 of Title 28 U.S.Code is the governing statute and in its pertinent part provides:

"The names of grand and petit jurors shall be publicly drawn from a box containing the names of not less than three hundred qualified persons at the time of each drawing.

"The jury box shall from time to time be refilled by the clerk of court, or his deputy, and a jury commissioner, appointed by the court.

* * * * *

"The jury commissioner and the clerk, or his deputy, shall alternately place one name in the jury box without reference to party affiliations, until the box shall contain at least 300 names or such larger number as the court determines."

(Emphasis supplied.)

The court made no order requiring the

139 F. Supp. 364

jury officials to place more than 300 names in the box

It is the contention of the defendants that paragraph one of the above statute mandatorily requires that at the time of each drawing the jury box shall contain the names of at least 300 persons who at that time are qualified in all respects to serve as jurors. This construction is based upon a literal interpretation of the italicized language of paragraph one of the statute as quoted above. Its application would impose upon the clerk and commissioner onerous and additional duties not contemplated by the statute construed as a whole. It is a universally approved canon of construction that in resolving ambiguities in a statute courts must be guided by the legislative intent. Equally well settled is the rule that courts are not required to accept the literal interpretation of words in a statute where such meaning is repugnant to the true intention of the lawmaking body. 50 Am.Jur., Sec. 240; In re Russell, D.C., 28 F.2d 48; In re Blalock, D.C., 31 F.2d 612; Fleischmann Const. Co. v. United States, 270 U.S. 349, 46 S.Ct. 284, 70 L.Ed. 624; Helvering v. Hammel, 311 U.S. 504, 61 S.Ct. 368, 85 L.Ed. 303.

Section 1864 is not a model of precise statement. It leaves much to implication, but when considered with Section 1861, which defines the qualifications of jurors, the legislative intent becomes clear. Section 1864 imposes upon the clerk and jury commissioner the duties of selecting names of persons possessing the qualifications prescribed by Section 1861 and of placing at least 300 names of such persons in the jury box before a drawing is made.

Because the drawing of panels would reduce the number of names in the box to less than 300, Congress directed that from time to time the "jury box shall be refilled" by the clerk and commissioner. The clear implication of this latter provision is that at the time the box is refilled, it must also contain the names of at least 300 persons who were selected as qualified by the clerk and commissioner. These provisions make clear the legislative purpose to require the initial placement in the box of at least 300 names of persons selected as qualified by the jury officials, and to provide for their replenishment from time to time so that at the time of each drawing the box shall contain not less than the required...