United States v. Jones

69 F. 973, 1895 U.S. Dist. LEXIS 58

• Court: U.S. Circuit Court for the District of Nevada
• Decided: September 3, 1895
• Docket: No. 820
• Status: Published

Opinion

HAWLEY, District Judge

(orally). 1. The court did not err in excusing certain grand jurors of its own motion. One was excused because he was a surety upon the bond of defendant for Ms appearance in court. Another, because he had left the state, with his family, without the intention of returning, and had sought and obtained employment in another state, and had simply returned to this state on a temporary visit. Another was a witness in the mint cases. The others had either formed or expressed opinions of the guilt or innocence of the defendants in the mint cases. There is no pretense that any of the grand jurors who were sworn and found the indictment were disqualified to serve or were in any respect improper persons. If any disqualified juror had been placed upon the panel, it might be urged that it would injuriously affect the -whole panel; but, if all the individuals selected and sworn were in all respects unobjectionable, it is difficult to see how the defendant can maintain any objection on the ground that certain other persons were excused from serving. U. S. v. Gale, 109 U. S. 65, 70, 3 Sun. Ct. 1. In State v. Kelly, 1 Nev. 226, the court said:

“tVhen there is any probability that a juror is disqualified, and the court is unable to determine it, by reason of its inability to establish the fact constituting such disqualification, as in this case, it is not required to hazard the regularity of its proceedings by permitting such person to sit as a juror.”

See, also, State v. Larkin, 11 Nev. 326.

The rule is well stifled that for any good cause shown the court may, without challenge from either party, excuse a juror, of its own motion, before be is sworn, and if an impartial jury is thereafter obtained the defendant cannot complain. State v. Larkin, 11 Nev. 326, and authorities there cited; State v. Pritchard, 15 Nev. 79; State v. Crutchley, 19 Nev. 369, 12 Pac. 113; People v. Murphy, 45 Cal. 143; People v. Colson, 49 Cal. 679; People v. Atherton, 51 Cal. 495. In State v. Bradford, 57 N. H. 198, where certain grand jurors were excused, the court said:

“The court has so long exercised the power of excusing jurors for reasons that have been deemed satisfactory, without its power to do so being questioned, that it must be regarded as firmly settled that the court has such power, and that-the exercise of it in the discretion of the court .will not ordinarily be revised.”

The reason upon which these decisions are based is that when a competent jury, composed of the requisite number of persons, has been impaneled and sworn, the purpose of the law is accomplished; that although, in selecting the jury, a competent person has -been rejected, yet, if another competent person has been selected in his stead, no injury has resulted to the prisoner. It is- certainly no • ground of error for the court even to be more cautious and strict in securing an impartial grand jury than the law actually requires, by rejecting a juror on grounds which might not be technically sufficient to sustain a challenge for cause. Neither the government nor the accused can complain, so long as an impartial jury is obtained. Levy v. Wilson, 69 Cal. 111, 10 Pac. 272. Moreover, the defendant and his counsel were present in court when the grand jury was impaneled, and had the opportunity of taking objections to the action of the court in excusing the grand jurors, or to object to any other juror or jurors on the panel. When the court asked the question whether they had any objections, none were made. If there were any valid objections to the action of the court in excusing jurors, or any objection to any grand juror on the ground of prejudice, bias, partiality, ignorance, or incompetency, or other cause, the defendant ought, in justice and fairness, to have brought the same to the attention of the court before the jurors were sworn. In Boulo v. State, 51 Ala. 19, where the provisions of the state statute prohibited pleas in abatement to be filed on the ground of the disqualification of any grand juror, the court said:

“There is no reason-for apprehending that, under our statutes, any right of persons accused will be prejudiced by the selection and impaneling of an improper grand jury. On the court is devolved the duty of ascertaining that each juror possesses the requisite qualifications, as a preliminary to giving in charge to the jury the duties they are required to perform. This duty the court uniformly observes, thereby guarding against the introduction of persons not fit or qualified to serve. Any person, as amicus curise, can suggest the unfitness of any juror; and, if necessary, the court would hear evidence, and determine the question.”

See, also, Com. v. Smith, 9 Mass. 109; People v. Romero, 18 Cal. 93; U. S. v. Palmer, 2 Cranch, C. C. 11, Fed. Cas. No. 15,989; State v. Easter, 30 Ohio St. 543.

The real contention 'of the defendant is that the conrt had no power to' excuse any grand juror for any cause whatever, unless he came within the disqualification or exemptions mentioned in , sections 8788, 4065, 0796, of the General Statutes of Nevada,—in other words, the court had no authority to excuse any juror, of its own motion, unless he was a minor, an alien, an insane person, or a, prosecutor,—and that the state statutes furnished the only guide for the action of the court. If tin; first portion of the contention is correct, (hen it would follow that il' the accused person, whose case was to come before the grand jury liad been on the list drawn from the jury box, the court would have been compelled to accept him as a grand juror, and to have allowed him to act as a juror in all eases except his own. If 12 of the grand jurors had testified that they had formed and expressed opinions that the defendant, was guilty, and that they should vote in favor of an indictment, without hearing any further evidence, the court would have no "power to excuse them, or either of them. If it was brought to the attention of the court, in a reliable manner, that one or more of the jurors had offered, in advance of being swrom, that he was willing to sell his vote, for any sum of money, to either party, the court would have no power, authority, or jurisdiction to excuse the juror. Those illustrations are sufficient to show the absurdity of the defendant’s contention. Such results w'ould be utterly subversive of every principle of justice; would be contrary to the spirit and genius of free institutions; would be a reproach to any court that w'ould permit such a practice to be pursued, and a dark blot upon the jurisprudence of any country. There is no lawthat gives an accused person the absolute rigid; to have grand jurors accepted by the court vyho have formed and expressed unqualified opinions that lie is innocent. There is no law, rule, or practice that compels the court to accept any grand juror to be on the panel who has formed and expressed the opinion that the accused is guilty. But, if such persons were selected without any objections being made, it would be no ground for setting aside the indictment. In State v. Hamlin, 47 Conn. 95, 114, cited and relied upon by defendant, the court, said:

“Tlio authorities which have been cited show conclusively that objections to grand jurors on the ground that they have formed and expressed opinions of the guilt of a person accused of crime, before they were impaneled and sworn, cannot be pleaded in abatement to the indictment.”

The action of the court in the present case was strictly within the lines of the decisions of the supreme court of Nevada; but, even if it was not, it would not necessarily follow" that any error had been committed. The stale law is not absolutely controlling. U. S v. Tallman, 10 Blatchf. 21, Fed. Cas. No. 16,429. In U. S. v. Benson, 12 Sawy. 477, 482, 484, 31 Fed. 896, Mr. Justice Field, in discussing objections to grand jurors raised by plea in abatement to the indictment, said:

“It is true that in considering objections to grand jurors, or to their action, the federal courts aro not restricted to such as are specifically designated in.the legislation of the state. The provisions of the statute passed to bring offenders against the laws to trial are not to be construed so as to defeat their purpose. The various proceedings prescribed are the means designed, not merely to protect the accused, but also to protect the public, and are to bo enforced, on the one hand, so as to secure to the accused a full and fair trial, and, on the other hand, so as not to prevent the punishment of crime. Notwithstanding, therefore, the federal courts require for their jurors similar qualifications with those of jurors in the state courts, and enforce like objections and challenges to them, they still have the power—and it 'is their duty to exercise it, either on their own motion, or on that of counsel—to enforce any other objections to jurors which, from théir nature, if well founded, would necessarily unfit them to act. * * * In all criminal proceedings the federal courts will so exercise their inherent powers that, so far as it is possible, notwithstanding the forms of procedure prescribed, the rights of the accused will not be impaired, nor the ends of justice defeated.”

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.

2. There are exceptional cases where an indictment might be. quashed, or a plea in abatement sustained, on the ground of improper conduct upon the part of the grand jurors. If the grand jury required the accused to appear, and compelled him to be sworn and to testify touching the charge against him, the indictment might be set aside. State v. Froiseth, 16 Minn. 296 (Gil. 260). If a witness who was incompetent, or disqualified from giving evidence, under the law,—as, for instance, if the wife of the accused testified before the grand jury,—the indictment might be quashed. But it is only in rare and exceptional cases that motions to quash, or pleas in abatement, have been sustained by the court on the ground that illegal testimony was received by the grand jury. To permit an inquiry of this sort would open the door to great abuses. It would afford opportunity to tamper with the jury. It would lessen the respect due to the forms and solemnities of judicial proceedings.

“It could only be in a very clear case, where it could be made to appear manifestly, and beyond every reasonable doubt, that an indictment apparently legal and formal bad not in fact the sanctions which the law and the constitution require, that the court would sustain a motion to quash or dismiss it, upon a suggestion of this kind.” Low’s Case, 4 Greenl. (Me.) 446.

In U. S. v. Terry, 14 Sawy. 49, 39 Fed. 355, Hoffman, J., said:

“An exception to the general rules of law, which forbid a record to be contradicted, a grand juror to disclose the proceedings of the jury, or to impeach its findings, will only be allowed in rare and extraordinary cases, and where the matters, if true, worked a manifest and substantial injury to the defendant, which the court, in the interest of justice, is bound to redress.”

The general rule is, as stated in the authority last cited—

“That matters which contradict the record, or which are, if true, only provable oy testimony of the jurors, who must be permitted to disclose what their terms of the oath and the general rules of law require them to keep secret, and the effect of which is to impeach their verdict, .cannot be set up in a formal plea in abatement.”

In the present case the motion to quash and plea in abatement are based solely upon information and belief. The sources of such information are not given. It is not even asserted that there was not sufficient competent testimony to authorize the finding of an indictment, but defendant does interpose his belief “that if the hearsay testimony, opinions, and statements of the witness Mason had not been given, that no indictment would have been found.” It is not claimed that Mr. Mason, who gave the testimony complained of, before the grand jury, was an incompetent or disqualified witness under the law. The only charges are that he gave some hearsay testimony; that he was not the legal custodian of certain books and documents which he had in his possession, and referred to in Ms testimony; and that he was an expert, and gave his opinions to the jury. No ease has been cited which enunciates any principle of law that would authorize the court to set aside the indictment upon any such grounds. It is undoubtedly true that all investigations before grand juries ought to be conducted within tine well-established rules of evidence, and the best evidence of which the case is susceptible ought to be presented, and hearsay testimony excluded. The grand jurors in the present case were directly charged by the court to only receive legal evidence, and to exclude hearsay, suspicions, or mere reports. They were also charged that, to justify the finding of an indictment, they should be convinced from the evidence presented to them that (he accused person is guilty: “In other words, you ought not to find an indictment, unless you believe that the evidence presented to you, unexplained and uncontradicted, would warrant a conviction before a petit jury.” It does not appear by any competent proof that any illegal evidence was received. But it may he assumed that grand jurors sometimes ask questions that might lead a witness to give some hearsay testimony. In State v. Logan, 1 Nev. 516, the court discussed this question at considerable length, and it was there stated that the admission of evidence not strictly legal will authorize the setting aside of an indictment is a proposition which seems to have no authority to sanction it, and, if adopted, “would only he an impediment to the execution of criminal justice; for it is evident that, under the present practice, not one indictment out: of five could be found, where it could not be shown that some illegal proof was received.” It was further stated that where there is the slightest legal evidence the court cannot inquire into its sufficiency, or set it aside, because some illegal evidence was received with it, and then announces the doctrine that “to authorize the setting aside of an indictment, even where there was no legal evidence at all to sustain it, that fact must appear by proof independent of the testimony of the grand jurors.” If the state practice is controlling, as claimed by counsel, then it necessarily follows that the motion and plea, so far as this ground is concerned, should be denied. The general principles announced in State v. Logan have been, in one form or another, approved in a great number of decided eases. State v. Hamilton, 13 Nev. 389; Hope v. People, 83 N. Y. 419; State v. Fowler, 52 Iowa, 103, 2 N. W. 983; Creek v. State, 21 Ind. 152; State v. Fassett, 16 Conn. 457; U. S. v. Reed, 2 Blatchf. 466, Fed. Cas. No. 16,134; U. S. v. Brown, 1 Sawy. 531, Fed. Cas. No. 14,671. In State v. Hamlin, 47 Conn. 115, the court said:

•‘Tlie allegations In tliat part of the defendant Davis' plea in abatement which is now raider consideration could not, if they are true, lie proved, except by tbe testimony of tbe grand jurors themselves. Tbe grand jurors could not have been allowed to give testimony in respect to them. * * * The demurrer to the plea cannot be allowed to operate as an admission of the truth of the allegations pleaded, or to have any other operation or effect than an objection or exception to the filing and allowance of the plea.”

3. Section 1024, Rev. St. U. S., reads as follows:

“When there are several charges against any person for the same act or ' transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments, the whole may be joined in one indictment in separate counts; and if two- or more indictments are found in such cases, the court may order them to be consolidated.”

. This statute leaves the question to the court to determine whether, in any given case, a joinder of two or more offenses in one indictment against the same person “is consistent with the settled principles of criminal'law.” Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410. It is evident that under this decision the joinder of the two counts furnishes no ground whatever in support of defendant’s plea, or motion to quash. If it should appear at any time that by the joinder of the two counts the defendant might be embarrassed in his defense, the court would have the right to compel the prosecution to elect under which count it shall proceed. But it is apparent from the decision that the court is justified in forbearing at this time, before the disclosure of any facts, to compel an election by the prosecution between the two counts; and if, upon the trial, it should be developed that the accused was not embarrassed in his defense by the union of the counts in one indictment, and that none of his substantial rights would be in any manner prejudiced by the refusal of the court to compel the prosecutor to elect upon which of the counts he will proceed, the court will be' justified in such refusal. Counsel, in my opinion, have failed to comprehend, to some extent, at least, the true meaning of section 1024. There are three separate subdivisions in the statute,, under either of which authority is given to unite several c.ounts in the same indictment: (1) When there are several charges against any/person for the same act or" transaction; (2) when there are several charges against any person for two or more acts or transactions connected together; (3) when there are several charges against any person for two or more acts or transactions of the same class of crimes or offenses. The arguments were principally directed to the third subdivision, whereas the case comes directly under the other two. The act or transaction, or acts and transactions, of which the defendant is accused, is the felonious taking from the United States mint at Carson of gold metal of the value of $23,000, the property of the United States, etc. There are two sections of the Revised Statutes which directly refer to such acts or transactions, under which the person guilty.of any such act or acts is liable to punishment, under the provisions of which the present indictment was found. The first count is framed under the provisions of section 5456,' which refers generally to all classes of cases where any person feloniously takes and carries away any kind or description of personal property belonging to the United States, whether it is taken from the post office, the subtreasury, or the miut, or from any officer having in his possession any personal property of the United States. The punishment provided for in this section is “by a fine of not more than five thousand dollars, or by imprisonment at hard labor not less than one nor more than ten years, or by both such fine and imprisonment.” The second count is framed under the provisions of section 5460, for the felonious taking and embezzlement of the metals at the United States mint which were committed to the defendant’s charge. The punishment provided for in this section is imprisonment “at hard labor for a term not less than one year nor more than ten years,” and a fine “not more than ten thousand dollars.” These offenses were properly joined by separate» counts in the same indictment. Upon the face of the indictment, the act or transaction of which the accused stands charged is the felonious taking from the mint of gold metal of the value of $23,000, the personal property of the United States, contrary to the provisions of the statute in such case made and provided. Whether under a general definition the language of the first count might be classed as larceny, and in the second as embezzlement, is immaterial. It is for the same act or transaction, or acts and transactions connected together. Numerous illustrations of the principles governing this class of cases might be found under the various provisions of the statute relating to offenses against the postal laws, the revenue laws, the custom laws, or laws against counterfeiting, etc. In all these, and many other, cases, there are various separate and distinct offenses which may, under the statute in question, and by the practice of the United States courts, be set forth in different counts in the same indictment, and the fact that the punishment is different for the offense mentioned in one or more counts from the others does not prevent all the offenses being set forth in separate counts in the same indictment. The defendant may be convicted upon one or all of such counts, and, if it appears to the satisfaction of the court that the counts upon which lie is convicted relate to one act and transaction, then one general sentence may be given upon the indictment; and, if the sentence thus given is within the statute upon auv count, it will be valid. If the defendant is convicted, upon different counts relating to separate -and distinct transactions or offenses, then sentence may be passed upon each count, or the court may pass sentence under one count, and suspend sentences on the others until the first sentence is executed. In Ex parte Hibbs, 11 Sawy. 459, 26 Fed. 421, the court said:

“In cases arising out of the same act or transaction, ox* two or more acts or transactions connected together, where there are several counts in the indictment, it will depend on the circumstances of the ease whether, on a general verdict of guilty as charged in the indictment, the defendant may be sentenced to more than the maximum punishment for one of the offenses charged. But in the case of two distinct offenses, arising out of two distinct acts or transactions, however closely related in point of time or place, the trial is for distinct offenses, of which the defendant may be found guilty, and receive the maximum punishment for each. " The act authorizing the joinder of offenses in one indictment, and the consolidation of separate indictments for distinct offenses, was intended to promote the speedy and economical administration of justice in such eases, in the interest both of the government and the defendant, and not practically to merge two or more distinct offenses into one, for the benefit of the latter.”

The statute is much broader than any of the statutes of the respective states, so that the decisions cited under the statutes of different states have but little bearing upon the question at issue here. In U. S. v. O’Callahan, 6 McLean, 597, Fed. Cas. No. 15,910, the court said:

“A count for embezzlement on 39 Geo. III. c. 85, may be joined with a count for a larceny on 2 Geo. II. e. 25, because these offenses are felonies; and a count for embezzling bank notes upon 39 Geo. III. e. 85, may be joined with a count for larceny at common law.”

And numerous English authorities aré cited in support of this position. See, also, 1 Whart. Cr. Law, 978.

Touching the general question as to what counts may be united in one indictment, see Ingraham v. U. S., 155 U. S. 436, 15 Sup. Ct. 148; In re Lange, 13 Blatchf. 548, Fed Cas. No. 8,065; U. S. v. Stetson, 3 Woodb. & M. 164, Fed. Cas. No. 16,390; U. S. v. Burns, 5 McLean, 24, Fed. Cas. No. 14,691; U. S. v. Bennett, 17 Blatchf. 357, Fed. Cas. No. 14,572; U. S. v. Dickinson, 2 McLean, 325, Fed. Cas. No. 14,958; U. S. v. Wentworth, 11 Fed. 53; U. S. v. Blaisdell, 3 Ben. 133, Fed. Cas. No. 14,608; People v. Bogart, 36 Cal. 245; Womack v. State (Tex. Cr. App.) 25 S. W. 772; Brown v. People, 39 Mich. 37.

4. The indictment contains a sufficient description of the property alleged to have been stolen and embezzled from the United States mint. All that is necessary, in this respect, is that the property must be described with sufficient certainty to enable the court to determine that the property is, in law, the subject of the crimes alleged in the indictment, and to enable the jury to discern that the property-proved to have been feloniously taken is the same which is mentioned in the indictment. In Dunbar"v. U. S., 156 U. S. 1S5,191,15 Sup. Ct. 325, the description of “prepared opium, subject to duty by law, to wit, the duty of $12 per pound,” was held sufficient in an indictment for smuggling. In the course of the opinion the court said:

“The rule is that if the description brings the property in respect to which tty offense is charged clearly within the scope of the statute creating the offense, and at the same time so identifies it as to enable the defendant to fully prepare his defense, it is sufficient.”

See, also, U. S. v. ClafLin, 13 Blatchf. 178, Fed. Cas. No. 14,798, which was an indictment for smuggling, and the language used to identify the goods, and which was held sufficient, was as follows: “Certain goods, wares, & merchandise, to wit, a large quantity of silk goods, to wit, six cases containing silk goods, of the value of $30,000.”

The following (among other) descriptions of personal property have been held sufficient in indictments for larceny: “One watch,” without stating whether it was gold, silver, or brass. Williams v. State, 25 Ind. 150. “Three head of cattle,” without stating the particular species. People v. Littlefield, 5 Cal. 355. “One book,” without gating its title or character. State v. Logan, 1 Mo. 532; Turner v. State, 102 Ind. 426, 1 N. E. 869. Numerous other authorities might be cited of like import.

The request to call grand jurors for the purpose of giving testimony is refused, motion to quash indictment denied, plea in abatement dismissed, and demurrer to indictment overruled.