United States v. Nevin

• Decision Date: 26 September 1912
• Docket Number: 2,592.,2,585,2,584
• Citation: 199 F. 831
• Parties: UNITED STATES v. NEVIN et al. SAME v. APPEL et al. SAME v. OPPENHEIM.
• Court: U.S. District Court — District of Colorado

199 F. 831

UNITED STATES v. NEVIN et al. SAME v. APPEL et al.

SAME v. OPPENHEIM.

Nos. 2,584, 2,585, 2,592.

United States District Court, D. Colorado.

September 26, 1912

Fred A Maynard, Sp. Asst. Atty. Gen., for the United States.

E. M Cranston and W. M. Downing, both of Denver, Colo., for defendants Nevin et al.

T. J O'Donnell and J. E. Robinson, both of Denver, Colo., for defendants Appel et al.

Edw. C Stimson, of Denver, Colo., for defendant Oppenheim.

LEWIS District Judge.

To indictments found and returned by the grand jury at the November, 1911, term, the defendants in each of these cases have filed pleas in abatement. Each of the pleas makes objection to the manner of selecting five of the grand jurors. The facts in that respect, as disclosed by the record (copied into the Oppenheim plea), are these: The grand jury, consisting of eighteen members, was regularly impaneled, sworn and charged on the 7th of that month; after it had progressed with its labors two of the grand jurors were finally excused, and thereafter and on November 22d, Grand Juror Straub was reported and by the court found to be 'ill and unable to constantly attend the further consideration at all times of all matters to be presented to the grand jury'; it was further made to appear that all cases which had been presented to the grand jury up to that time had been concluded and finished, but that there were other matters for consideration by the grand jury. The reason for not finally excusing Juror Straub was that the grand jury had not made report on investigations which it had concluded, and it could not do so at that time on account of the inability of said Straub to be present in court; and it was considered advisable, if not necessary, that at least sixteen grand jurors who had participated in investigations make report thereof. For that reason said Straub was retained as a member of the body in order that he might, if possible, act with his fifteen fellow members in making report on their prior investigations. And under these conditions the court, on November 22d, ordered that a special venire facias issue to the marshal of the district commanding him that he summon five good and lawful men from the body of the district, and not from bystanders, that they attend the court and serve as grand jurors until discharged, said venire being made returnable on the following day. Under the marshal's return five men came into court in obedience to the writ and were then and there sworn and charged as grand jurors and placed upon the panel with the fifteen remaining jurors, Straub being still absent. Juror Straub, not having been finally excused, returned and acted as a grand juror with the other twenty on December 22d, on which day final report was made and the grand jury was discharged. The pleas allege that investigation of and action on these cases was taken after November 23d, when the five additional persons had been added to the body. It is contended that the court was without power to add members to the body while it was still composed of sixteen (Straub not being discharged), and also that the court was without power to make the order for an open venire, but should have first ascertained and fixed the persons to be called in by drawing that number of names from the box. It is claimed, for defendants, that the body, after the five persons thus drawn had been added, did not constitute a grand jury and was without authority to find and present these indictments.

None of the pleas charges that any of the five persons thus added were disqualified to act as grand jurors, nor sets forth any facts disclosing that said five persons, or other members of that body, were prejudiced or in any manner unfit as grand jurors to act in these cases.

The plea of the defendants in case 2,585 adds an additional ground. It alleges that two of the defendants in that case were officers of the J. S. Appel Suit & Cloak Company, a corporation, adjudged a bankrupt on November 14, 1911; and that thereafter said two defendants were required to appear before the referee and give testimony in said bankruptcy proceeding; that attorneys for creditors of said bankrupt, who heard said testimony given before the referee, appeared before the grand jury as witnesses and disclosed to said body the testimony of said two defendants before said referee; that said grand jury considered the same and would not have found and returned the bill in case 2,585 but for said disclosure. This plea also alleges that nine other named witnesses were sworn and examined in the investigation which resulted in the finding of this indictment, but it charges that each of said nine witnesses gave illegal evidence before the grand jury, in that, neither of 'said witnesses had or claimed to have any personal knowledge of anything in the said supposed indictment alleged as a matter of fact, and that the testimony of the said several witnesses, and each of them, was hearsay only, all of which will appear from an inspection of the minutes of the said supposed grand jury.'

To each plea the prosecution has demurred.

I. There is serious doubt whether any of the pleas in so far as they challenge the placing of the five additional men on the grand jury, is good in substance. Neither of them alleges facts showing disqualification or prejudice on the part of the five added or any members of that body. On considering the sufficiency of such a plea it is said, in Agnew v. U.S., 165 U.S. 36, 17 Sup.Ct. 235, 41 L.Ed. 624:

'Another general rule is that for such irregularities as do not prejudice the defendant he has no cause of complaint, and can take no exception. U.S. v. Richardson (C.C.) 28 F. 65; U.S. v. Reed, 2 Blatchf. 456, Fed. Cas. No. 16,134; U.S. v. Tallman, 10 Blatchf. 21, Fed. Cas. No. 16,429; State v. Mellor, 13 R.I. 666; Cox v. People, 80 N.Y. 500; People v. Petrea, 92 N.Y. 128. * * * And, moreover, the plea is fatally defective in that, although it is stated that the drawing 'tended to his injury and prejudice,' no grounds whatever are assigned for such a conclusion, nor does the record exhibit any such.'

On a demurrer to a like plea Judge Bellinger, in U.S. v. Mitchell (C.C.) 136 F. 896, 907, uses this language:

'Instead of conclusions and opinions, there must be something tangible, justifying a presumption of injury to the defendant in a substantial right, before the court will interfere.'

In U.S. v. Benson (C.C.) 31 F. 896, it appeared from the plea that some of the grand jurors were not 'assessed on the last assessment roll of his county, on property belonging to him,' a qualification required by the state statute (Code Civ. Proc. Sec. 198); but it did not appear from the plea that such jurors were otherwise unfit or in any manner prejudiced. Mr. Justice Field, who sat in the case with Circuit Judge Sawyer and District Judge Hoffman, expressed the view that this was an irregularity only and cured by the statute of jeofailes (section 1025, R.S.U.S. (U.S. Comp. St. 1901, p. 720)) and added:

'The apprehensions, therefore, of one of the learned counsel as to the fearful consequences which may follow in other cases if the indictment be sustained in this case in the face of his objections, may be considered with composure, and dismissed.'

See also Lowdon v. U.S., 149 F. 673, 79 C.C.A. 361; U.S. v. Am. Tobacco Co. (D.C.) 177 F. 774, 780.

II. The objection taken to the calling of the five additional jurors while the number then in the panel had not been permanently reduced to less than sixteen, embodies two propositions, first, that the court was without authority to select or cause the marshal to select the persons to be added in any other manner than to first draw their names from the box, and second, the court was without power to add additional grand jurors while that body was composed of sixteen members.

The first proposition is foreclosed against the plea by U.S. v. Eagan (C.C.) 30 F. 608. Mr. Justice Brewer expressed himself on the proposition thus:

'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, * * * so that I have no doubt that the court has to-day, as it always has had, the power to summon from the by-standers to fill up a petit jury, and to summon from the body of the district, in an emergency, for completing a grand jury.'

And Judge Thayer added:

'But this irregularity in choosing the five grand jurors will not avail (after the jury has been sworn, and have found indictments) as ground for quashing the indictment so found either on plea in abatement or otherwise, when it appears that the jurors so irregularly chosen were competent and qualified jurors, residing in the district, and that the only irregularity consists in the method of selecting them. * * * If the point to be decided by the court was to be determined solely with reference to the common law, and without reference to local laws, the better opinion seems to be that no objection to an indictment ought to be allowed, based merely on an irregularity in the manner of selecting a part or the whole of the grand jury which found the bill, if, in all other respects, they were duly-qualified jurors. Thus, in Thompson and Merriam on Juries, it is said that the only objection which can be taken to the grand jurors by plea in abatement, after they had been sworn and made presentments, ' must be such as would disqualify the juror to serve in any case; in other words, the plea must show the absence of positive qualifications demanded by...