United States v. Davis

• Decision Date: 22 May 1900
• Citation: United States v. Davis, 103 F. 457 (W.D. Tenn. 1900)
• Parties: UNITED STATES v. DAVIS.
• Court: U.S. District Court — Western District of Tennessee

103 F. 457

UNITED STATES v. DAVIS.

United States Circuit Court, W.D. Tennessee.

May 22, 1900

George Randolph, Dist. Atty., and Frank Smith, Asst. Dist. Atty for the United States.

D. A McDougall, for defendant.

HAMMOND J.

The defendant, being on trial for a criminal conspiracy in the accomplishment of which a deputy marshal of the United States had been killed, was entitled to 20, and the government to 5 peremptory challenges.Rev. St. Secs. 819, 5508, 5509;Mill & V. CodeTenn. Sec. 5352.

JurorNo. 6, having been accepted by both sides, took his seat in the box, but, upon hearing an argument as to a challenge for cause, himself announced that he felt disqualified to act impartially, and upon a further examination on his voir dire was set aside, without objection by either party.

The district attorney had peremptorily challenged two of the venire as they were called and examined on their voir dire, and the defendant six, when the box became full.But before the jury had been sworn the district attorney asked to challenge peremptorily juror 9, who had been passed and accepted by both sides after their examination by him on his voir dire, to which objection was made by the defendant.By the Tennessee Code, it is required that, in 'impaneling a jury for the trial of any felony, the court shall not swear any of the jurors until the whole number are selected for a jury. 'Mill. V. CodeTenn. Sec. 6050;Thomp. & S. Code, Sec. 5215.Always, in this court, in all cases civil and criminal, it has been the custom to swear the jury en bloc, as also it has been in the state courts.At common law, however, as will be seen from the citations in the authorities hereinafter mentioned, the practice was to swear each juror separately as he was called, qualified, passed, and accepted by the parties.After he had touched the book, by authority of the court, it was too late to challenge him for either cause or favor, or peremptorily; though as to cause or favor this rigid rule of the common law was relaxed, if not in England, in some of our states, and such challenges were allowed even after the juror had been sworn, particularly if the cause or favor could have been made the ground of a new trial.The rule was quite universal that until sworn every juror was subject to challenge, peremptory or other, and the confusion on the subject comes from statutory changes or local usage brought about by departure from the common-law rule, such as that taken by the Tennessee statute above quoted.The plain object of that statute is to prolong, in felony cases, the privilege of challenge by peremptory objection.It is confined to felony cases, and assumes, possibly, that in other cases the old common-law mode of swearing each juror as he came to the book and box obtained.However this may have been in 1817, when this provision was first enacted, through its influence or otherwise the state practice, followed by us, had become almost universal to swear the jury as a whole in all cases, civil and criminal.Inquiry among the lawyers confirms this statement of the general practice.The result of such a practice would naturally extend the time of peremptory challenge, as of challenge for cause, until the jury in a body had been sworn to try the case.I am unable to see that this statute could have had any other purpose than to prolong the right of challenge, imperatively, in felony cases, and by adoption in other cases, through the natural tendency to conform the practice in all cases to this statutory command in the given cases.

Before further examining the state practice in this regard, it may be well enough to remark that in the case of Brewer v. Jacobs,22 F. 217, 231, 244, this court had occasion to examine the practice as to impaneling juries, both at common law and in this court.See, also, Clough v. U.S. (C.C.)55 F. 921, 927.That practice was followed in this case, with that modification which becomes natural, if not necessary, in treason or capital cases, because of the statutory requirement that the defendant shall have a list of the jurors and witnesses furnished him not less than three and two entire days, respectively, before he is tried.Rev. St. Sec. 1033.Such a list was furnished in this case, since the defendant may be punished capitally, as if on indictment for murder, and therefore, although the regular venire had been qualified generally, and juries for the term impaneled, as described in the last-cited cases, and had been trying many cases, as each was called, yet when this case was called, the venire, as it appeared by the furnished list, was recalled as if there had been nothing done.Each juror on the list, being sworn to answer such questions as should be asked him touching his qualifications, was examined by the court touching his statutory qualifications, and then turned over to the parties for examination upon the voir dire, by their counsel.Thus, the box became full, as before state.The jurors in question had been 'accepted'; that is to say, each had passed successfully the scrutiny of examination, and had been told by both sides to take a seat in the box, which he had done, neither being challenged by either side for cause or peremptorily.Neither had either been sworn to try the case, nor had any of their fellows already seated in the box.Perhaps either side might have reserved all peremptory challenges until the full 12 men had been thus 'impaneled' or offered to them as a qualified jury.

Abbott, JuryTr. Sec. 18, p. 22, citingBridge Co. v. Pearl,80 Ill. 251, 254;Taylor v. Railroad Co.,45 Cal. 323;People v. Bodine, 1 Denio, 281;Hunter v. Parsons,22 Mich. 96;Adams v. Olive,48 Ala. 551;Spencer v. De France, 3 G. Greene, 216;U.S. v. Daubner (D.C.)17 F. 793, 797;4 Bl.Comm. 353.

Other authorities seem contrary to this, and perhaps the law upon the point has not been authoritatively settled either way, so that it may be certainly ruled.Thomp. &M. Jur. Sec. 266(2), citingBrandreth's Case, 32 Howell, StateTr. 773, and other cases on that side of the conflict; but also still other cases, too numerous for citation here, in accord with those first cited above, in favor of the right of reservation until the full jury is tendered.The author seems to favor this view, also, but the cases cited are not now accessible for out critical examination.The existence of the conflict accounts for the act of 1817 in Tennessee, and explains it.We have adopted the view that the time of all challenge is prolonged, in felony cases, at least; and while this indictment for conspiracy may not be, technically, a felony, it is beyond question that it is of that gravity that demands the same construction in its favor.

Returning for a moment to the relation of the actual practice in this case, it may be said that, in accordance with the custom here, and in the state practice as well, neither side pursued the better practice, if it were open to him, of reserving peremptory challenges for a full jury, qualified on voir dire, and ready to be sworn; but each exercised the right of peremptory challenge at once, as soon as the juror appeared and qualified, or as soon as any challenge lodged for cause was overruled by the court.Ordinarily, in common cases, one of the two juries impaneled at the beginning of the term is in the box when the case, civil or criminal, is called, and is thereby tendered to the parties.Either side examines for cause, and, the challenges being settled, quite always, as a fact, a full jury is in the box when the right of peremptory challenge is exercised.But in cases like this, where the jurors are called up, one by one, for examination and tender, we have fallen into the habit of overlooking the value of reservation, and the peremptory challenge follows an adverse ruling on a challenge for cause, or is promptly made without any preliminary examination whatever, as is often the case.If all the peremptory challenges are exhausted in the process, of course there can be no more, and this is so often the situation that, perhaps, we get the idea that it is too lage after the juror has taken his seat, although he has not been sworn.Our Code has also, in state practice in civil cases, given an option of drawing the jury.Thomp. & S. Code, Sec. 4026.If we followed the strict common-law practice, and did not mix the two, statutory and common law, as we do, it would, indeed, be too late; because before the juror had taken his seat, if there were no challenge for cause or peremptory, he would have 'touched the book,' and been sworn already to try the case on its merits, each separately, and not en bloc, as we always swear them.Thomp. &M. Jur. Secs. 269, 269(6).This particularity of our habits of practice is given because it lights up the obscurity and confusion of right in the premises as it is developed by the authorities.Id.Secs. 265, 270.

At common law the district attorney's peremptory challenge was not too late.Until the juror had taken the book to be sworn to try the case, the right was open.That is clear from the decisions of the supreme court of the United States hereafter to be cited.Under the Tennessee statute above cited, in my judgment, it is especially preserved until the whole 12 are in the box ready to be sworn, the statute having no other reason whatever for its existence.It is true that by the ancient law the king had no peremptory challenge, and for this very reason he was not required to challenge for cause until the 12 men had all been gathered together by the exercise of the defendant's right of challenge for cause and peremptorily.The defendant could challenge as many as three full juries peremptorily, and the king was at that disadvantage.But by statute and modern usage, except...