United States v. London

• Citation: 176 F. 976
• Parties: UNITED STATES v. LONDON.
• Decision Date: 28 April 1909
• Court: U.S. District Court — Eastern District of Oklahoma

176 F. 976

UNITED STATES v. LONDON.

United States District Court, E.D. Oklahoma.

April 28, 1909

J. E London, for the motion.

District Attorney Gregg, Frank Lee, and Ira D. Oglesby, opposed.

CAMPBELL District Judge.

The defendant, John London, was indicted at the January, 1909 term of this court at Muskogee, together with several others upon the charge of conspiracy to defraud the United States. The indictment charged that the conspiracy was formed and an overt act committed early in the year 1906. The defendant at the same term was arraigned and entered his plea of not guilty, and at this term of the court the cause was called for trial. Before announcing ready the defendant by counsel filed his motion asking leave to withdraw his plea and file a motion to quash the indictment, setting up the substance of the motion to quash in his motion for leave to withdraw the plea, and also attaching to his motion for leave a copy of the motion to quash. The ground upon which the defendant mainly relied in his motion to quash the indictment was that the indictment was returned by a grand jury at the last term of this court sitting at Muskogee composed of 21 men, when lawfully a grand jury for the purpose of indicting for an offense alleged to have occurred before statehood must be composed of only 16 men, and charging that the grand jury returning the indictment in this case was composed of 21 men and was not examined, impaneled, and sworn according to the provisions of the law of Arkansas, in force in the Indian Territory at the time of the alleged commission of the crime with which defendants were charged, and that said indictment was returned in violation of the rights of the defendants guaranteed by the Constitution of the United States. The motion for leave to withdraw the plea and file motion to quash was denied by the court, and the defendant went to trial. The jury returned a verdict of guilty. The defendant then filed his motion for new trial, setting up various grounds, most of which had been presented to the court during the trial, fully argued and ruled upon, and, on the hearing of the motion for new trial, counsel for defendant only urged the ground set up in the motion-- that the court had erred in refusing to permit the defendant to withdraw his plea and file his motion to quash; that the court's failure to do so was an abuse of discretion. The defendant by counsel also had prepared and by permission of court filed and presented a motion in arrest of judgment, which motion sets up as its main ground the same question sought to be raised in the motion to quash; that is, that as to this defendant, the grand jury composed of 21 men was an illegal grand jury, and that the indictment was therefore a nullity.

As to the action of the court in refusing to permit defendant to withdraw his plea and file his motion to quash, I am of the opinion that this was a matter entirely within the discretion of the court, and that the refusal to permit the plea to be withdrawn was not an abuse of such discretion. The motion in arrest of judgment, however, presents a much more serious question.

In the year 1906 when it is charged the offense was committed, the Western district of the Indian Territory was presided over by the United States court for the Indian Territory, which court at that time had jurisdiction of such offenses. The impaneling of grand juries in that court was governed by section 3991 of Mansfield's Digest of the Laws of the State of Arkansas (Ind. T. Ann. St. 1899, Sec. 2671) which together with other laws of said state had been prior thereto extended over the Indian Territory. By said section it was provided that a grand jury of 16 persons shall be selected from those designated as grand jurors, but if any shall be absent, incompetent to serve, or excused the deficit shall be made up by taking a sufficient number of competent alternates present in the order in which their names appear upon the list. In November, 1907, under an enabling act theretofore passed by Congress (Act. June 16, 1906, c. 3335, 34 Stat. 267), the state of Oklahoma was admitted into the Union, and by said enabling act was divided into two judicial districts, the Eastern and Western, and United States Circuit and District Courts were by said act established in each of said districts, with all the jurisdiction and powers of United States Circuit and District Courts generally.

By section 14 of the enabling act (34 Stat. 275 (U.S. Comp. St. Supp. 1909, p. 155)) it is provided:

'That all prosecutions for crimes or offenses hereafter committed in either of said judicial districts as hereby constituted shall be cognizable within the district in which committed, and all prosecutions for crimes or offenses committed before the passage of this act in which indictments have not yet been found or proceedings instituted shall be cognizable within the judicial district as hereby constituted in which such crimes or offenses were committed.'

With the change to statehood and the establishment of this, the United States District Court for the Eastern District of Oklahoma, section 808 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 626), as to the impaneling of grand juries, became effective, providing that a grand jury should consist of not less than 16 nor more than 23 persons. It was under this section of the Revised Statutes that the grand jury which indicted the defendant was organized and impaneled. As the records of the court show, the grand jury returning this indictment consisted of 21 men. At this term of the court, Judge John A. Marshall sitting, in the case of United States v. Charles N. Haskell et al. (see 169 F. 449) a motion to quash the indictment was presented, setting up, among others, the ground alleged in this case, to wit, that while the offense charged in that case was alleged to have been committed prior to statehood, when the law provided for the grand jury of 16 men, the defendants in that case were indicted after...