Wood v. United States

• Decision Date: 25 March 1936
• Docket Number: No. 6646.,6646.
• Citation: 65 App. DC 330,83 F.2d 587
• Parties: WOOD v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

65 App. DC 330, 83 F.2d 587 (1936)

WOOD v. UNITED STATES.

No. 6646.

United States Court of Appeals for the District of Columbia.

Argued March 6, 1936.

Decided March 25, 1936.

Robert I. Miller, William E. Leahy, and William J. Hughes, Jr., all of Washington, D. C., for appellant.

L. C. Garnett, U. S. Atty., and Irvin Goldstein, Asst. U. S. Atty., both of Washington, D.C.

Before MARTIN, Chief Justice and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

GRONER, Associate Justice.

Appellant was convicted of petty larceny in the police court of the District of Columbia, and sentenced to 240 days' confinement in jail. We shall call him defendant.

At his trial, twelve prospective jurors were called. In their examination it was disclosed that one of them was the holder of a "bonus certificate"; another was a clerk in the United States Weather Bureau; another a clerk in the Federal Emergency Administration; another a clerk in the Treasury Department; and another a clerk in the Navy Yard. One was a Civil War pensioner. Counsel for defendant challenged each of these prospective jurors individually and collectively for cause, on the ground that each had an interest in the United States which disqualified him to sit in the trial of a criminal case to which the United States was a party. The court disallowed the challenge. When the jury was finally impaneled and sworn, one of the 12 was a clerk in the Treasury Department, one a clerk in the Navy Yard, and one a recipient of a Civil War pension. All had been challenged for cause, both before and after the exhaustion of defendant's peremptory challenges. The case was tried. A motion for a new trial, urged on the ground that the jury was illegally constituted, was overruled and sentence imposed. We granted an appeal because of the importance of the question involved.

On the appeal, the United States relies upon a recent statute, Act of August 22, 1935 (Session Laws, 1st Sess., 74th Congress 1935, part 1, 49 Stat. p. 682), entitled, "An Act To amend the law providing for exemptions from jury service in the District of Columbia." It reads as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 360 of title 18 of the Code of the District of Columbia of 1929, otherwise known as `section 217 of the Code of Law for the District of Columbia,' approved March 3, 1901, be, and the same is hereby, amended to read as follows:

"`All executive and judicial officers of the Government of the United States and of the District of Columbia, all officers and enlisted men of the Army, Navy, Marine Corps, and Coast Guard of the United States in active service, those connected with the police and fire departments of the United States and of the District of Columbia, counselors and attorneys at law in actual practice, ministers of the gospel and clergymen of every denomination, practicing physicians and surgeons, keepers of hospitals, asylums, almshouses, or other charitable institutions created by or under the laws relating to the District of Columbia, captains and masters and other persons employed on vessels navigating the waters of the District of Columbia shall be exempt from jury duty, and their names shall not be placed on the jury lists.

"`All other persons, otherwise qualified according to law whether employed in the service of the Government of the United States or of the District of Columbia, all officers and enlisted men of the National Guard of the District of Columbia, both active and retired, all officers and enlisted men of the Military, Naval, Marine, and Coast Guard Reserve Corps of the United States, all notaries public, all postmasters and those who are the recipients or beneficiaries of a pension or other gratuity from the Federal or District Government or who have contracts with the United States or the District of Columbia, shall be qualified to serve as jurors in the District of Columbia and shall not be exempt from such service: Provided, That employees of the Government of the United States or of the District of Columbia in active service who are called upon to sit on juries shall not be paid for such jury service but their salary shall not be diminished during their term of service by virtue of such service, nor shall such period of service be deducted from any leave of absence authorized by law.' Approved, August 22, 1935."

Prior to the passage of this statute, the provision with relation to the qualifications of a juror was that he should be a citizen of the United States, a resident of the District of Columbia, over 21 and under 65 years of age, able to read and write and understand the English language, and a person who had never been convicted of a felony or misdemeanor involving moral turpitude. In 1908, the Supreme Court held in Crawford v. United States, 212 U.S. 183, 29 S.Ct. 260, 264, 53 L.Ed. 465, 15 Ann. Cas. 392, that an employee of the United States was not qualified to serve as a member of a petit jury in the District of Columbia in the trial of a criminal case. The effect of the decision and of others of like nature which followed, resulted, it is said, in narrowing the eligible list of jurors in the District to the point where it sometimes became difficult to secure jurors possessing the necessary qualifications. To correct this, Congress extended the list of eligibles to include employees of the United States and of the District of Columbia, officers and enlisted men of the National Guard and of the Military, Naval, Marine, and Coast Guard Reserve Corps, notaries public, postmasters, and recipients of pensions and gratuities from the United States or the District, as well as those having contracts with the United States or the District; and the question we have to decide is whether this statute, when applied in a criminal case like the present, is in violation of the provisions of the Sixth Amendment guaranteeing to the accused in all criminal prosecutions the right of trial by an impartial jury. Stated otherwise, the question is whether defendant has been accorded a trial by an impartial jury within the meaning of the Sixth Amendment of the Constitution.

It is, of course, elementary that all the provisions of the Constitution are in all respects applicable to the District of Columbia. Callan v. Wilson, 127 U.S. 540, 550, 8 S.Ct. 1301, 1304, 32 L.Ed. 223; Capital Traction Co. v. Hof, 174 U.S. 1, 5, 19 S.Ct. 580, 43 L.Ed. 873; Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 777, 45 L.Ed. 1088. And in the Downes Case, the court said: "This District had been a part of the states of Maryland and Virginia. It had been subject to the Constitution, and was a part of the United States. The Constitution had attached to it irrevocably. There are steps which can never be taken backward. The tie that bound the states of Maryland and Virginia to the Constitution could not be dissolved, without at least the consent of the Federal and state governments to a formal separation. The mere cession of the District of Columbia to the Federal government relinquished the authority of the states, but it did not take it out of the United States or from under the ægis of the Constitution. Neither party had ever consented to that construction of the cession. If, before the District was set off, Congress had passed an unconstitutional act affecting its inhabitants, it would have been void. If done after the District was created, it would have been equally void; in other words, Congress could not do indirectly, by carving out the District, what it could not do directly. The District still remained a part of the United States, protected by the Constitution."

It is equally elementary that the word "jury" and the words "trial by jury" and "impartial jury" should be construed with reference to the meanings they had in England and at the time of the adoption of the Constitution and Bill of Rights. Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L. Ed. 1061. The American colonists regarded the right to trial by jury, which, of course, means trial by an impartial jury, as "the most transcendent privilege which any subject can enjoy." They regarded their claim to it as the clear and inevitable result of their origin and historical development. "When our more immediate ancestors removed to America, they brought this great privilege with them, as their birthright and inheritance, as a part of that admirable common law which had fenced round and interposed barriers on every side against the approaches of arbitrary power. It is now incorporated into all our State constitutions as a fundamental right, and the Constitution of the United States would have been justly obnoxious to the most conclusive objection if it had not recognized and confirmed it in the most solemn terms." 2 Story on the Constitution, § 1779.

At common law, employees or servants of a party to a suit were disqualified as jurors on the theory of implied prejudice or bias. In Coke's Commentary on Littleton's Institute (p. 155) it is stated: "He that is of a jury, must be liber homo, that is, not only a free-man and not bond, but also one that hath such freedom of mind as he stands indifferent as he stands unsworn."

And Blackstone defined a principal cause of challenge as one "where the cause assigned carries with it prima facie evident marks of suspicion either of malice or favour"; and this situation, he declared, exists as to jurors in all cases of the relation of master and servant. 3 Black.Comm. 358.

Without more, therefore, it is safe to say that at common law the relationship of employer and employee worked an absolute disqualification, and this was equally true in this country at the time of the adoption of the Constitution. But it is insisted, on the part of the United States, that, since the right to establish qualifications for those who shall serve as jurors is a matter intrusted to the state, it is within...