Williams v. United States

• Decision Date: 01 August 1921
• Citation: 275 F. 129
• Parties: WILLIAMS v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

275 F. 129

WILLIAMS v. UNITED STATES.

United States Court of Appeals, Ninth Circuit.

August 1, 1921

Rehearing Denied October 10, 1921.

L. E Dadmun, of San Diego, Cal., for plaintiff in error.

Robert O'Connor, U.S. Atty., and Wm. Fleet Palmer, Asst. U.S Atty., both of Los Angeles, Cal.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

The indictment upon which the plaintiff in error was tried contained 27 counts, the trial resulting in a verdict of not guilty under four of them, a disagreement of the jury as to fourteen, and a verdict of guilty under nine, namely, 16, 17 19, 21, 22, 31, 33, 34, and 35, upon which last-mentioned counts the judgment complained of was based. Our inquiry, therefore, must be confined to those counts only, and to such portions of the very voluminous record as are pertinent thereto; the record, however, containing a full transcript of the proceedings on the trial, the laborious examination of which has satisfied us that, as respects the facts of the case, certainly there is no ground upon which we would be justified in interfering with the result reached in the trial court.

One of the assignments of error insisted upon by the plaintiff in error is that the trial court erred in denying his motion to quash the indictment on the ground that the grand jury that returned it was not a legal body, for the reason that the court made no order directing the clerk and the jury commissioner to select jurors to be put in the grand and petit jury box. In support of the motion the clerk was called as a witness and gave this, among other, testimony:

'There was no order made by the court directing myself and the commissioner to select jurors to be put into the grand and petit jury box. There was no order of that kind made. The jury commissioner and clerk put the names in the box without a special order of the court to do so. The court did not at any time order and direct myself and the commissioner to select names from the different counties in this district and place them in the jury box to constitute petit and grand juries. The court did not make any order directing a certain number of names to be selected and drawn and put in the jury box. I can't turn to any order made in relation thereto. No such order was made. I put in the box--that is, the jury box-- names of persons which were thereafter to be used as petit and grand jurors, without the court having first made an order directing me so to do. Q. Just prior to selecting the names for this grand jury box, which composed this grand jury, did you and the commissioner meet and select names to be put in the box before the grand jury was selected? A. I can't give you the date now that we put them in. I don't know whether it was immediately preceding the drawing of the grand jury or some time preceding. Q. Well, you did do so, though, previous to selecting the grand jury? A. Yes. Q. On more than one occasion after the commissioner was appointed by the court? A. Yes. Q. How many occasions? A. On two or three; I am not certain. Q. Have you any minute entry of those occasions? A. No.'

Section 276 of the Judicial Code (Comp. St. Sec. 1253) prescribes that both grand and petit jurors shall be publicly drawn from a box containing at the time of each drawing the names of not less than 300 persons possessing the qualifications prescribed in the preceding section, which names shall have been placed therein by the clerk of such court and a commissioner, to be appointed by the judge thereof, or by the judge senior in commission in districts having more than one judge, which commissioner shall be a citizen of good standing, residing in the district in which such court is held, and a well-known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations, until the whole number required shall be placed therein.

By Act Feb. 3, 1917, c. 27, 39 Stat. 873 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 1253) the above-mentioned section was so amended as to confer upon a 'duly qualified deputy clerk' the same authority as was therein given the clerk.

Section 277 of the Judicial Code (Comp. St. Sec. 1254) is as follows:

'Jurors shall be returned from such parts of the district, from time to time, as the court shall direct, so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly burden the citizens of any part of the district with such service.'

That section is applicable to grand, as well as petit, jurors. Agnew v. United States, 165 U.S. 44, 17 Sup.Ct. 235, 41 L.Ed. 624; Spencer v. United States, 169 F. 562, 95 C.C.A. 60.

The clerk also testified that when the grand jury that returned the indictment in question was drawn more than 300 names were in the box, and the record also shows that the judge of the court had directed the clerk and jury commissioner regarding the statutory requirements, although it does not appear that such order was entered upon the minutes of the court. The record of the case, however, is absolutely destitute of anything tending to show that the plaintiff in error was in any way prejudiced thereby.

In United States v. Reed, 27 Fed.Cas. 727, the court, composed of Circuit Justice Nelson and District Judge Hall, held that under the act of August 8, 1846 (9 Stat. p. 73, Sec. 3), providing that no grand jury should be summoned in the federal courts except upon an order for a venire, to be made by a judge, a verbal order given to the clerk, though not entered of record or filed, was sufficient. And in the Case of Fries, 9 Fed.Cas. 826, 923, Circuit Justice Iredell ruled that the required venire, issued with the sanction of the court, had the same effect as though the express order of the court had been annexed thereto.

In United States v. Caplis et al. (D.C.) 257 F. 840, where a plea in abatement to an indictment for a conspiracy was based on the allegation that the jury commissioner who assisted in the drawing of the grand jury which returned the indictment was not a well-known member of the principal political party in the district opposed to that to which the clerk belonged, the District Court, in overruling the plea, referred to a similar ruling made by Circuit Judge Pardee and District Judge Swain in the case of United States v. Chaires et al., in the Circuit Court for the Northern District of Florida (40 F. 820), where the court said: 'An inspection of this statute shows that the work of preparing the names of the persons possessing the qualifications of jurors, and placing them in the box, is to be done by the clerk of the court and a jury commissioner to be appointed by the judge. The duty to be performed by these parties is clearly and specifically prescribed in the statute. It may be considered, and probably is, mandatory; but it is entirely distinct from the duty devolving, under the statute, upon the judge. The plea under consideration relates entirely to the performance of the duty of the judge. By the statute the judge is to appoint a commissioner, who shall be a citizen of good standing, who shall reside in the district in which the court is held, and who shall be a well-known member of the principal political party in the district opposing that to which the clerk belongs. The question is whether this part of the statute is mandatory or directory; whether, in appointing a jury commissioner, the judge, while endeavoring to comply with the law, must make no mistake of fact or of judgment, but must, at the peril of all subsequent proceedings, be sure to appoint a citizen, not only of standing, but of good standing, and not only a known, but a well-known, member of the principal political party opposed to that to which the clerk belongs. The statement of the question, and the nature of the case, satisfies us that the statute in this particular is directory, and not mandatory. What is the standard for a citizen in good standing? By what rule is it to be determined who is a well-known member of a political party? Considering that the judge has knowledge, judicial or otherwise, as to the political party of the clerk, by what rule is the judge to determine which is the principal party opposed? Suppose that the clerk is an Independent or a Prohibitionist? In case of a challenge to the array of jurors, or a plea in abatement, who is to try the issue? All matters and questions come back to the judge. The judge, in the exercise of a sound discretion, under the responsibilities of his office, directed by the statute, passes upon the qualifications of the jury commissioner he appoints, and his action would seem to be final and conclusive, except, perhaps, in the court that can call the judge to account for misbehavior in office. Particularly must this be the case where neither injury nor prejudice nor oppression is apparent nor is averred.'

By Act Feb. 26, 1919, Congress made this addition to section 269 of the Judicial Code:

'On the hearing of any appeal, certiorari, writ of error, or motion for a new trial in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties.' 40 Stat.p. 1181, Comp. St. Ann. Supp. 1919, Sec. 1246.

Prior to that amendment the general rule was that for such irregularities as did not prejudice the defendant he had no cause for complaint. Agnew v. United States, 165 U.S. 36, 44, 17 Sup.Ct. 235, 41 L.Ed. 624, and cases there cited; 24 Cyc.of Law & Proc. 217, where may be found...