United States v. Mitchell

• Decision Date: 25 April 1905
• Docket Number: 2,902.
• Citation: 136 F. 896
• Parties: UNITED STATES v. MITCHELL.
• Court: U.S. District Court — District of Oregon

136 F. 896

UNITED STATES v. MITCHELL.

No. 2,902.

United States Circuit Court, D. Oregon.

April 25, 1905

Francis J. Heney, U.S. Dist. Atty.

A. S Bennett, for defendant.

BELLINGER District Judge.

The defendant pleads to the indictment that the grand jury returning the same was not regularly organized or impaneled but was irregular and void, by reason of the fact that upon the impaneling of the jury on October 18, 1904, it included W. E. Robertson and Carl Phelps, who were qualified and lawful jurors; that on October 19th Robertson was excused for the term by order of the court, without cause, and on January 27th following Carl Phelps was, by order of the court excused, although he had been taking part in the investigation of this charge; that one George Peebler was added to the grand jury on October 25th; that, the grand jury having partially investigated the charge against the defendant, on the 19th of December Fred G. Buffum was, by order of the court, added to the panel; that both of the jurors so added continued as members of the jury until its final discharge, and voted upon the finding of the indictment-- all of which is alleged to have been to the defendant's prejudice. For a further answer and plea, it is alleged that George Guistin, a member of the grand jury was not a qualified juror, by reason of the fact that he was not a citizen of the United States, but was and still is a citizen of some foreign country. For a still further answer and plea, it is alleged that the names of Frank Bolter and Joseph Essner, who were members of the grand jury, were not upon the preceding or any assessment roll of any county in the state at the time they were sworn in as jurors, and that, as defendant believes, neither of them was a taxpayer in the county of his residence. For the last answer and plea, it is alleged that the district attorney, Francis J. Heney, was and is not a resident in this district, and that because of such nonresidence he could not be legally appointed to the office of district attorney; that he is very prejudiced against the defendant, and has been very active in working up feeling against him through the newspapers and otherwise, both in and out of court; that defendant is informed, believes, and alleges that said Heney was very vindictive and bitter in his prosecution of the charge against defendant before the grand jury, and greatly influenced the jury to find this indictment; and defendant alleges that, if said Francis J. Heney had not so unlawfully appeared before said grand jury, this indictment would not have been brought-- all to the defendant's substantial prejudice. It is further alleged, upon information and belief, that said Francis J. Heney remained with the grand jury and was present 'when they were deliberating on the evidence and on the charge,' and that he greatly prejudiced the defendant by arguments and denunciations against the defendant, and by threats and intimidations towards all or a portion of the grand jurors, all to the defendant's further substantial prejudice.

The questions of the alleged disqualification of the jurors Bolter and Essner, of the regularity and legality of the organization of the grand jury, of the authority of Francis J. Heney to act as district attorney, and those which relate to his conduct in the matters complained of, will be first considered; leaving the further questions as to whether the impaneling of the grand jury by the court does not involve a final decision as to the qualifications of the individual jurors, and finally whether any of the objections made can be urged by plea or otherwise, except such objections as are addressed to the sound discretion of the court.

Section 800 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 623) provides that:

'Jurors to serve in the courts of the United States in each state respectively, shall have the same qualifications and be entitled to the same exemptions as jurors of the highest court of law in such state may have and be entitled to at the time when such jurors for service in the courts of the United States are summoned.'

The qualifications of jurors under the state law are prescribed in section 965 of the Code (B. & C. Comp.). That section provides that:

'A person is not competent to act as a juror unless he be (1) a citizen of the United States; (2) a male inhabitant of the county in which he is returned, and who has been an inhabitant thereof for the year next preceding the time he is drawn or called; (3) over twenty-one years of age; (4) in the possession of his natural faculties and of sound mind. Nor is any person competent to act as a juror who has been convicted of any felony, or a misdemeanor involving moral turpitude.' It is made a ground of challenge that a person has been summoned and attended court as a juror at any time within one year prior to the challenge, or that he has served as a juror within such time.

There is no other positive disqualification for jurors provided by the laws of Oregon. It is not a disqualification by this statute that the name of a juror is not on the last preceding county assessment roll, and that he is not a taxpayer in the county; and, unless such a disqualification can be implied from the provisions of the law for selecting jurors, it does not exist. The law which provides the manner of selecting jurors requires the county court of each county to make, at its first term of each year, or, in case of omission or neglect to do so, then at any following term, from the last preceding assessment roll of the county, a list, denominated a jury list, containing the names of persons to serve as grand and trial jurors until the following year, or new lists are made. B. & C. Comp. Sec. 970. It further provides (section 971) that, 'in preparing the jury list, the names of those persons only must be selected who are known or believed to be possessed of the qualifications prescribed in section 965. ' The jury list so made is required to contain the names of not less than 200 persons, if there be that number of names of qualified jurors on the assessment roll, nor more than 600 names. Section 972. From this list the county clerk is required to take the names that are placed on the ballots to be deposited in the box from which jurors are drawn.

The question is therefore presented, does the state law, which requires a jury list to be made by the county court from the assessment roll, operate to make it a qualification for jury service that the juror's name shall be upon such roll?

In the case of State v. Carlson, 39 Or. 23, 62 P. 1016, 1119-- an appeal from Multnomah county-- there was a motion to set aside an indictment on the ground that, when it was found, one of the grand jurors was not, and had not been for a year preceding, an inhabitant or taxpayer of the county, but was a resident of the state of Washington, and that his name was not on the assessment roll of Multnomah county for the year preceding January 31, 1900. It was admitted that his name was on the assessment roll for the year 1898. The court found, as a matter of fact, that the juror's name was taken from the list made by the county court at its first term in 1899 from the last preceding assessment; that being the assessment from which it should have been taken. Whether it is required that a juror's name shall be upon the assessment roll, to qualify him for jury duty, was not decided; and the inquiry was not material, in view of the court's decision that the acceptance of the juror at the time the jury was impaneled was necessarily a conclusive decision upon the question, not subject to contradiction or review.

It has never been decided in this state, so far as appears, that a property qualification is necessary to the competency of a juror. A person may be a property owner and taxpayer, whose name is not upon the particular roll mentioned in the section in question. There may be a sheriff's assessment of property subsequent to the making of the list by the county court from the assessor's roll, and equally conclusive of the fact that the party assessed is a taxpayer. Furthermore, it is common knowledge that many of the largest property interests are assessed in the names of corporations or of trustees. If the names of the stockholders and beneficiaries are not upon the assessment roll, nevertheless they are under the bonds of self-interest to maintain good government equally with those whose names are there.

The provision which requires the county court to make a jury list from names on the assessment roll does not prescribe a property qualification for jurors, but a mode of selecting them. If it becomes a qualification for jury duty that the juror's name shall be upon the assessment roll, because the jury list is required to be made from such roll, then it is also a requisite to his qualification that his name shall be upon the jury list, since the names that are placed in the jury box by the clerk are required to be taken from that list. There is as much to be said in this connection for the list as for the roll. The names upon the jury list are required to be taken from the roll, and the names to be placed in the box are required to be taken from the list; and so, as already stated, if a juror must be upon the roll to be qualified, for the same reason he must be upon the list. Furthermore, there are various requisites as to the list necessary to its legality. If the list should contain the names of more than 600 persons, or less than 200 when there were that number on the roll, it would be an illegal list and, if the qualification of a juror depends upon the place where his name is found, such a juror would be disqualified. The mode provided for the selection of jurors...