Wright v. United States, 13634.

• Decision Date: 13 January 1948
• Docket Number: No. 13634.,13634.
• Citation: 165 F.2d 405
• Parties: WRIGHT v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

165 F.2d 405 (1948)

WRIGHT v. UNITED STATES.

No. 13634.

Circuit Court of Appeals, Eighth Circuit.

January 13, 1948.

Jerry Porter Wright pro se.

R. S. Wilson, U. S. Atty., David R. Boatright, Asst. U. S. Atty., and Charles A. Beasley, Jr., Asst. U. S. Atty., all of Fort Smith, Ark., for appellee.

Before GARDNER, THOMAS and JOHNSEN, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from an order denying appellant's motion to vacate a judgment and sentence and to quash the indictment on which appellant was convicted. The basis for the motion was that women had been systematically and deliberately excluded from service on the grand jury returning the indictment, and that women had likewise been excluded from service on the petit jury which tried the case. The motion was denied and this appeal followed. Appellant will be referred to as defendant.

On January 9, 1945, an indictment was returned by a grand jury for the Western District of Arkansas charging defendant with the theft of twenty-six cases of beer in transit from St. Louis, Missouri, to Harlingen, Texas, in violation of Section 409, Title 18 U.S.C.A. On April 26, 1945, he entered a plea of not guilty and counsel was assigned to represent him. On May 15, 1945, he withdrew his plea of not guilty, stating that he had discharged his attorney, and then entered a plea of nolo contendere. On May 18, 1945, he was sentenced to imprisonment for five years. He then interposed a motion to set aside this sentence and the sentence was accordingly set aside on January 15, 1946. He then withdrew his plea of nolo contendere, new counsel was assigned to represent him, and a plea of not guilty was entered on June 10, 1946. He was given a jury trial, found guilty and sentenced to imprisonment for a period of two years. Thereafter he prosecuted his appeal from that conviction to this court and on January 27, 1947, the judgment appealed from was affirmed. Wright v. United States, 8 Cir., 159 F.2d 8.

Jurors sitting in a federal court are required to have the same qualifications as those of the highest court of law in the state where the federal court is sitting. In Arkansas women are eligible to sit as grand and petit jurors. For the purposes of this case it is admitted that women were deliberately and systematically excluded from serving on either the grand or petit jury. It is the contention of defendant that the proceeding was so lacking in due process as to make it void. It is the contention of the government on the other hand, that defendant has waived any right that he might have had to question either the grand or petit jury panel by reason of the fact that without protest or motion challenging the panel he proceeded to trial, and thereafter on his appeal to this court raised no question as to the regularity of the proceeding culminating in his conviction.

It appears without dispute that defendant was regularly arraigned, went to trial, was sentenced, and appealed to this court without raising the question now sought to be presented. Section 556a, Title 18 U.S. C.A., provides as follows: "No plea to abate nor motion to quash any indictment upon the ground of irregularity in the drawing or impaneling of the grand jury or upon the ground of disqualification of a grand juror shall be sustained or granted unless such plea or motion shall have been filed before, or within ten days after, the defendant filing such plea or motion is presented for arraignment; * * *."

This statute in form at least limits the power of a court to consider the alleged irregularity in the drawing of the grand jury and when the time limited by the statute has passed the power of the court to entertain an objection to the panel on the ground of the disqualification of the grand jurors is at an end. Medley v. United States, App.D.C., 155 F.2d 857; United States ex rel. McCann v. Thompson, 2 Cir., 144 F.2d 604, 156 A.L.R. 240. Rule 6(b) (1) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. following section 687, provides that, "The attorney for the government or a defendant who has been held...