Tierney v. United States

280 F. 322, 1922 U.S. App. LEXIS 1787

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 2, 1922
• Docket: No. 1917
• Status: Published

Opinions

WOODS, Circuit Judge.

The defendant, Tom Tierney, was convicted of carrying on the business of a retail liquor dealer without paying the special tax in November, 1918. At the term when he was tried the presiding judge, to facilitate business in the trial of accused persons, ordered the jurors divided into three panels of 12 each, numbered 1, 2, and 3. When a case was to be tried, one of these panels was called in the box. The clerk then examined the 12 on their oaths as to their qualifications. If any were disqualified, their places were filled from the other panels until 12 apparently qualified were obtained. These 12 were then presented to the defendant on trial and the government for the exercise of-the right of challenge for cause or peremptory challenge without cause. As the juror challenged retired, another was called to his place and examined as to his qualification. This method proceeded until further challenge was waived or the right exhausted. The 12 jurors remaining in the box were then sworn to try the cause.

When the defendant was called on to exercise his right of challenge in this manner, his counsel, claiming the right to have presented at once 28 qualified jurors, challenged the entire panel of 12 as illegal. This claim and challenge was denied. The impaneling of the jury then proceeded in the method indicated, the defendant each time when called on to exercise his right of individual challenge refusing to do so and repeating the challenge to the whole panel.

The state statute allows in felony cases to the defendant 6 peremptory challenges and to the state 2. The federal statute allows 10 and 6. Section 5579 (chapter 159, § 3) of the West Virginia Code requires a panel of 20 jurors to be qualified and presented for challenge. But there is no state or federal statute or rule of the District Court requiring 28; nor was there any federal statute or formal rule of the federal court on the subject.

The essentials to the free exercise of the right of challenge are: First, that the defendant shall have access to the list of jurors; and, second, that he shall have presented to him face to face for challenge jurors ascertained to be legally qualified. There is no complaint that the defendant did not have a list of all the jurors, but the contention is that 28 qualified jurors should have been presented together for challenge instead of 12.

[1-4] At common law the usual practice was to call each juror separately, ascertain his qualifications, and present him for challenge. Layers’ Case, 16 How. St. Trials, 135 (1722); Brandreth’s Case, 32 How. St. Trials, 755 (1817); Regina v. Frost, 9 Car. & P. 129-137; United States v. Aaron Burr, 25 Fed. Cas. 55-83, No. 14,693; 1 Thompson on Trials, 107. But the observance of that method is not essential. Nor is the federal court bound to follow the state statute or the usual practice of the state court. The District Court was therefore free to ordgr any method in presenting qualified jurors which did not impair the free exercise of the right of challenge. Pointer v. United States, 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208; Lewis v. United States, 146 U. S. 378, 13 Sup. Ct. 136, 36 L. Ed. 1011; St. Clair v. United States, 154 U. S. 134, 147, 148, 14 Sup. Ct. 1002, 38 L. Ed. 936; Hendrikson v. United States, 249 Fed. 34, 161 C. C. A. 94.

[5] The opportunity for comparison of jurors is greater when 12 are presented at once than under the common-law method of presenting each juror separately. The complaint against either method is met by the principle, so often repeated, that .the right of challenge is a right of rejection, not of choice. The whole matter is so fully and clearly decided against the contention of the defendant in the opinion of the court in St. Clair v. United States, 154 U. S. 134, 147, 148, 14 Sup. Ct. 1002, 38 L. Ed. 936, that further discussion or citation seems unnecessary.

[6] Even .if the jurors had been improperly presented, the defendant, not having exhausted his peremptory challenges could not complain of the error. Sawyer v. United States, 202 U. S. 150-165, 26 Sup. Ct. 575, 50 L. Ed. 972, 6 Ann. Cas. 269; Conn. Mutual Life Ins. Co. v. Hillmon, 188 U. S. 208, 121, 23 Sup. Ct. 294, 47 L. Ed. 446.

[7] We have recently held that a defendant, indicted for violation of the liquor laws of the United States, may be asked on cross-examination if he has not been guilty of other like offenses, on the issue of the credibility of the witness. Fields v. United States, 221 Fed. 242, 245, 137 C. C. A. 98; Christopoulo v. United States, 230 Fed. 788, 791, 145 C. C. A. 98; Wharton’s Crim. Ev. p. 1666; 1 Wigmore, p. 444.

Affirmed.