United States v. Chapman

• Decision Date: 06 January 1947
• Docket Number: No. 3289.,3289.
• Parties: UNITED STATES v. CHAPMAN et al.
• Court: U.S. Court of Appeals — Tenth Circuit

158 F.2d 417 (1946)

UNITED STATES v. CHAPMAN et al.

No. 3289.

Circuit Court of Appeals, Tenth Circuit.

November 20, 1946.

Rehearing Denied January 6, 1947.

Fred Smith, of Oklahoma City, Okl. (David L. Bazelon, Curtis P. Harris, Roger P. Marquis and Kelsey Martin Mott, all of Washington, D. C., on the brief), for appellant.

Earl A. Brown, of Ardmore, Okl., for appellees.

Before PHILLIPS, HUXMAN and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

The United States condemned and took 3,591 acres of land in the Eastern District of Oklahoma, owned by Fred A. and Elise Chapman, for the Denison Dam and Reservoir on the Red River in Texas and Oklahoma. A trial to a jury resulted in a verdict in favor of the landowner in the sum of $228,000, as just compensation for the taking of the land. Judgment was entered upon the verdict, and the Government has appealed.

It is contended by the Government that the trial court committed reversible error: (1) by sustaining the landowner's challenge to a prospective juror on the grounds that he was a civil service employee of the Government; (2) in overruling the Government's challenge for cause (after having exhausted its peremptory challenges) to another prospective juror, C. W. Tomlinson, on the grounds that he had served as an expert witness against the Government in prior condemnation proceedings, and was friendly to the landowner; and (3) that a new trial should have been granted because of remarks made in the presence of the same juror, Tomlinson, outside and unconnected with the trial, which, it is urged, deprived the Government of a fair and impartial trial.

In the course of the examination of the jury on voir dire, one prospective juror, whose name is not shown, answered that he was an inspector at Camp Maxey, employed by the Government under civil service. The landowner challenged him for cause, and the court excused him over the objections of the Government. It is said that the prospective juror was qualified under applicable law, and his discharge without cause constituted prejudicial and reversible error.

In condemnation proceedings in federal court, the practice, pleadings, and modes of procedure must conform, "as near as may be", to those existing at the time in like causes in the courts of record of the state within which such district court is held. 40 U.S.C.A. § 258; rule 81(a)(7), Federal Rules Civil Procedure, 28 U.S.C.A. following section 723c. Furthermore, the qualifications of jurors in federal courts are the same as those of the highest court of law in the state wherein the federal court is held. 28 U.S.C.A. § 411. Section 572, Title 12 O.S.A., in material part, provides that a petit juror, "Who is the employer, employee, counselor, agent, steward or attorney of either party * * * may be challenged for such causes; in either of which cases the same shall be considered as a principal challenge, and the validity thereof be tried by the court * * *." The text of this Section was lifted almost literally from the Common Law, according to which a principal challenge carries with it prima facie evidence of favor, which, if true, cannot be overruled. See 3 Blackstone, 363. In other words, the inquiry is limited to the true status of the prospective juror, and not the question of his favor.

Based upon a close analysis of the Common Law, as applied to "master" and "servant", the United States Supreme Court has now decided that there is no settled practice under the Common Law establishing an "absolute disqualification" of governmental employees to serve as jurors in cases wherein the Government is a party. It is said that "The imputation of bias simply by virtue of governmental employment, without regard to any actual partiality growing out of the nature and circumstances of particular cases, rests upon an assumption without any rational foundation." United States v. Wood, 299 U.S. 123, 57 S.Ct. 177, 187, 81 L.Ed. 78. Thus, we are sure that, under the Common Law, the prospective juror was not disqualified per se, merely because he was a government employee. The Oklahoma Supreme Court has not considered the point, but we perceive no reason why it would not adopt this construction and interpretation of the synonymous words "employer" and "employee", as used in the Oklahoma statute.

Be that as it may, an interested party to a lawsuit has no vested right in any particular juror. The right of challenge is the right to exclude incompetent jurors, not to include particular persons who may be competent. All the Government is entitled to under the law is to have its cause tried to an impartial jury of 12 men, and unless it is shown otherwise, the error of the court, if there be error, in discharging or excusing a qualified juror, is not prejudicial or reversible error. Bank of Buffalo v. Venn, 68 Okl. 43, 171 P. 450; Mathews v. State, 19 Okl.Cr. 153, 198 P. 112; Spies v. People of State of Illinois, 123 U.S. 131, 8 S.Ct. 22, 31 L.Ed. 80; 31 Amer.Juris., p. 644.

The question whether juror Tomlinson was disqualified and should have been excused for cause, presents an entirely different problem, because he was retained on the jury, and the integrity of its verdict therefore depends upon his qualifications.

In addition to grounds for principal cause of challenge, hereinbefore specified, Section 572, Title 12 O.S.A., of the Oklahoma Statute, also provides in material part that any juror may be challenged on "Suspicion of prejudice against, or partiality for either party", and that the validity of all such challenges shall be determined by the court. Our question then is not whether Tomlinson should have been excused for "principal cause of challenge", (as in the case of the Government employee), but whether the Government's "suspicion of prejudice" or partiality is sufficiently grounded to deprive it of a fair and impartial trial.

Like other suitors, the Government is entitled to a fair and impartial trial before a jury of 12 impartial and unbiased jurors. Impartiality in the sense that we use it is not a technical conception. It is a state of mind or mental attitude, for the determination of which there is no fixed formula. United States v. Wood, supra; Baker v. Hudspeth, 10 Cir., 129 F.2d 779. Whether a juror is prejudiced or partial in the sense that one of the parties is denied a fair and impartial trial, is not a procedural matter to be determined by statutory construction. It is one of vital substantive law under the Constitution, to be resolved according to the highest standards of human conduct. It is a question first addressed to the good sense of the trial judge, subject to review under the supervisory power inherent in appellate jurisdiction. Cf. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Thiel v. Southern Pacific Co., 66 S.Ct. 984.

The record shows that Tomlinson called the trial judge the night before the date of the trial to tell him that he knew the landowner, and to inquire whether in view of his acquaintance with him, he should report for jury service. He was instructed to appear, and when called as a juror, the court interrogated him concerning his relationship with Chapman. In answer to questions, he related that he had known Chapman for some 20 years, had been in his home some two or three times, knew members of his family, had no business with him, but had discussed pieces of legislation with him while pending before the legislature, in which he was not actively interested, but to give Chapman "my figures when he asked for them." (Chapman had been a state senator). When asked by the court whether he could listen to all of the evidence and the argument from both sides and determine the issues submitted to him freely and fairly to both the Government and Chapman, he answered, "Yes, sir." In answer to questions propounded by the Government, he admitted that he had been an expert witness in a condemnation case involving land in this project; that he appeared for the landowner and testified to subsurface values. He would not say that he had a definite opinion as to land values in that territory, but that he had some knowledge. He did say, however, that he had no opinion or knowledge of the value of the land involved in this particular case.

When these facts were developed, the Government challenged the juror for cause on the ground that he had testified in condemnation cases against the Government involving the same question as here. Whereupon the court observed, "Well, I don't understand a witness that testified is necessarily for or against either party. He was a witness called by the landowner. I will make this general statement. A witness shouldn't be for or against either side." Tomlinson interjected, "I believe I was." The court answered, "Well, the court didn't agree with you in that matter either. I still don't think that disqualifies you to sit in this case, or I would have told you last night not to come over here. The only thing I am interested in now, they are...