United States v. Eagan

• Decision Date: 26 March 1887
• Citation: 30 F. 608
• Parties: UNITED STATES v. EAGAN.
• Court: U.S. District Court — Eastern District of Missouri

30 F. 608

UNITED STATES v. EAGAN.

United States Circuit Court, E.D. Missouri, Eastern Division.

March 26, 1887

T. B Bashaw, J. O. Broadhead, and P. H. Dyer, for the United States.

W. K Marshall and C. H. Prince, for defendant.

BREWER J., (orally.)

In this criminal case a plea in abatement has been filed. The matter which is presented thereby is one affecting the regularity of the organization of the grand jury, and not one affecting the qualifications of the jurors; for the fact that a juror belonged to one party, and was a strong partisan, would be no ground of challenge, even if presented before the jury was impaneled and sworn, any more than a challenge on the ground that he belonged to one church, and was a strong and bigoted adherent of that church. Neither party affiliation nor religious beliefs nor church adhesion affect the qualifications of a juror, grand or petit; but it is insisted there was an irregularity in the organization of this grand jury, in that five of the jurors were not drawn in the manner provided by the act of 1879. But a challenge to a grand jury based on the mere ground of irregularity in its organization was never regarded with any favor; less so to-day than ever. Many states have considered the grand jury superfluous, and have authorized prosecutions of all offenses, even the highest, by a simple information filed by the prosecuting attorney; and many states, even where a grand jury is preserved, have by statute limited to a very narrow extent the challenges which may be made to it. Among those states is Missouri, and, by repeated decisions of its supreme court, it is beyond question that no matter of this kind could be raised by plea in abatement to an indictment presented in a state court.

The federal statutes are silent, and contain no express provisions in respect to the matter of challenging a grand juror in any way. Section 722 of the Revised Statutes contains this provision:

'The jurisdiction in civil and criminal matters conferred on the district or circuit courts by the provisions of its title, and of title 'Civil Rights,' and of title 'Crimes,' for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect. But in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statute of the state wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.'

Section 800 (the last clause of which was expressly repealed by the act of 1879) reads:

'The jurors to serve in the courts of the United States, in each state respectively, shall have the same qualifications, subject to the provisions hereinafter contained, and be entitled to the same exemptions, as jurors of the highest court of law,' etc.

Mr. Conkling, in his treatise on the practice of the United States courts, insists that there are cogent reasons for holding that this refers, not merely to the mere qualifications as to citizenship, age, residence, etc., but that it extends to all the proceedings for challenging and determining the qualifications of jurors, and to that extent incorporates the laws of the state. Clearly, with these two sections of the federal statute we have the right, if we are not bound in every case in which there is no express provision of the federal statute, to apply the provisions and the laws of the state in which the court is held; and, applying the laws of Missouri, there can be no question but that this plea in abatement must be overruled.

I might stop here, and yet I desire to add a word in reference to this act of 1879. I do not think that it carries the meaning, or bears the construction, which counsel have put upon it. Nor do I think that sections 802, 804, and 808 are repealed by implication by it. Repeals by implication are never favored. The question which underlies them is one of the intent of the legislature. That intent is very clear, when they, in terms, mention a single clause of a section, the subsequent section, and then, passing a few, two more sections in the same article, and expressly repeal them, not to disturb the sections, and parts of a section, which they do not mention. This act of 1879 is interpreted by counsel as meaning that no juror could be placed in that jury-box, whether from the regular jury or summoned as talesman, unless his name had been drawn, in the regular way, out of the box containing at the time 300 names. The very difficulty of carrying into effect the act thus interpreted is strong reason for believing that such was never the intent of congress; for, bear in mind that that box must be full; that the names must be placed in by the commissioner and the clerk alternately. Did congress expect that the jury commissioner would remain in constant attendance during the session of every court, for fear that, in some particular emergency, the regular panel might be exhausted, and a further juror wanted?

As said by Judge SWING, in the opinion which he wrote concerning this section: 'Is it possible that if, when a jury is being impaneled, a single juror is wanting, the court must delay until the jury commission can be summoned, the box filled and a name drawn, and then, if found to be in a distant part of the district, the marshal has time to go and bring him down? ' The difficulty in enforcing such a construction of the statute is, I say, a very cogent reason for believing it was never the intent of congress. What was meant was this: that no regular jury, grand or petit, should be drawn or...