United States v. Merchants' & Miners' Transp. Co.

187 F. 355, 1911 U.S. App. LEXIS 5398

• Court: U.S. Circuit Court for the Southern District of Georgia
• Decided: March 8, 1911
• Docket: Nos. 379, 380, 381
• Status: Published

Opinion

SPEER,,District Judge (orally).

[1] I am quite sure that in directing the revision of the jury box, or boxes, by the order to which exception is taken in this plea in abatement, the court intended nothing save to distribute generally throughout the district the labor and burden of attending here, and to secure impartial and upright jurors. It will be observed that the commissioners were directed to select the jurors from over the whole division. The counties composing the division, with their populations, are as follows:

Effingham ........................................................ 24,125

Screven .......................................................... 20,202

Jenkins ..........:............................................... 11,520

Emanuel .....'.................................................... 25,140

Bulloch .......................................................... 26,464

Montgomery ........,......................................'.......10,60S

Tattnall .......................................................... 18,560

Glynn ............................................................ 15,720

Appling .......................................................... 12.308

Liberty .......................................................... 12,924

Bryan ...6,702

McIntosh...6,442

Camden....7,690

Wayne....13,069

This aggregates 220,513 persons residing outside of the limits of the county of Chatham, not quité three times as many as live in Chatham, our great seaport, which can properly boast of 79,690 inhabitants. There is, however, no rule that I am aware of relating to the selection of the jury, which is arithmetical in its character, unless it is that which fixes the minimum to be placed in the box. There shall be not less than 300. The maximum provided for by my order is not less than 550. Five hundred and fifty is not less than 300, unless my arithmetic is in error. So there is no violation of the law in that respect. Then, if there was a discretion vested in the court, it is not impossible that the court, in its exercise concluded that not all of the persons living in these various counties were proper for our jury body.

In this count}’' of Chatham there is a noble citizenship. Nearly every juror at this term of the court, I believe all without exception, have been citizens of Chatham county. I am not only proud of their appearance, proud of their character, but proud of the work that the}' have done. I intended no reflection upon them, or upon the other good people of Chatham county; but I reflected that there were a good many people here who are not naturalized. AVe have some 79 to-day knocking at the door of this court seeking naturalization. 1 do not know how many more there are. Then, too, in my rides about the beautiful environments of Savannah, 1 meet a number of simple and no doubt kindly people, dwelling in homes which to my mind resemble Henry Grady's Patchwork Palace. These are mainly constructed of pieces of rusty tin which have been stripped from the roofs of the city, on those occasions (to quote Goldsmith, in the “Deserted Village,” a passage relating to this neighborhood)

"When tlie mild 1 ornado dies,

Mingling oft the ravaged landscape with the skies.”

They talk in a dialect which is not understandable by those who know only the English language. And not infrequently in the performance of my extended duties in this community I have been obliged to call an interpreter to interpret their ‘English’ as it is spoken. It is really a Gullah dialect, which lias come down to them from their tribal forebears on the Dark Continent, and which cannot be understood by the court. I believe some of them are irreverently and carelessly alluded to by Vox Populi here as “Geechee coons.” They are quite numerous, and surely they arc not to be regarded such good jurors as the upright, clear-sighted, fearless Americans of the ancient American stock, many of whom live here, and many more of whom, in proportion to the population, reside in those counties sometimes called “the interior'’ front which these jurors have been selected.

Now the object of the court was to get jurors from all the counties of the district. AVe have not always been able to do that. Prom the time of my appointment as judge, almost down to the present time, we-have been obliged to omit certain counties. AVe now at times draw ihe jurors from every comity in the Southern district of Georgia. Formerly certain communities had a cheerful way of shooting at our officers. I remember a ca-se in which Mr. Adams was for the defense, and his client sat on the side of the road with a loaded shotgun and fired at a party of revenue officers riding along in their buggy, lie dropped the mule, but missed the officers. Mow we did not for some time thereafter select any jurors from that immediate locality. We regarded them as having perhaps some objection to the court, if they felt so hostile towards the officers.

Then, too, in other comities in the AVestern division there were greater difficulties. These culminated in the famous case of United States v. Hall et al. (C. C.) 44 Fed. 883, 10 L. R. A. 323, for conspiracy and murder. The, defendants were brought to trial, to be punished comformably to law for the murder of one of the most charming and amiable men I ever knew, John C. Forsyth, who was the agent of Mr. Norman W. Dodge, of New York, and who was seeking to protect the 300,000 acres of- land owned by that gentleman in that section of the state from the depredations of a lawless band of forgers and conspirators. Finally this deadly conspiracy resulted in a. duel and desperate encounter between one of our deputies and the surviving leader of the conspiracy. We did not draw jurors from those counties at that time. But so much have the conditions improved that now there is not a single county in the Southern district of Georgia to which we cannot safely go for jurors who will enforce, not only the laws of the state, but the laws of the United States.

The first Congress which met after the adoption of .the Constitution enacted this law:

“Jurors' shall be returned from such parts of the district, from time to time, as the courts shall direct, so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burden citizens of any part of the district with such services.” Rev. St. 802 (U. S. Comp. St. 1901, p. 625).

Many of the men who framed the Constitution, which was adopted but two years before, were members of that Congress. They enacted that law and according to paramount decisions of our courts it has been the law from that day down to the present time, and is the law to-day. It has just been re-enacted in the Judicial Code (section 277), otherwise called the “Moon Bill,” approved March 3, 1911. It is the law which has governed me in the 26 years of my service on the bench. It was challenged — it is true, very vigorously challenged — in the famous trial of the United States v. Greene and Gaynor (D. C.) 146 Fed. 776, charged with conspiracy to embezzle the funds which Congress had appropriated for the benefit of the people. This court, commenting upon it in that case, said:

.“This being the law, the court, not on Its own Initiative, but, as it will appear from the record and otherwise, having been requested more than once by the district attorney for the exercise of this power in order to obtain an impartial jury, determined to cause the jurors to be selected from that portion of the' district most remote from the scene of the transactions involved in this controversy. The counties from which the jurors are selected are among the most thrifty, enlightened, and progressive in the state of Georgia. They are the counties of Lowndes, Thomas, Decatur, Berrien, and Brooks as they then existed. The court had long experience of the intelligence, capacity, uprightness, and patriotism of jurors taken from that section of the state. They had long composed a part of the jury body at many terms in the courts of Savannah. How, then, was this jury to be obtained? Since a new jury must be had, we could not select jurors from the small Eastern division we now have, because it had been prescribed by law, and the prisoners were entitled to be tried in the district as previously ascertained. The law, familiar to all, requires that the jurors shall be returned by commissioners. One of these must be the clerk of the court, and the other a prominent member of the principal political party opposing that to which the clerk belongs. The home of the clerk is Savannah, and since the court had determined to draw the jury from the extreme southwestern counties of the state, how necessary was it that the additional commissioner should be selected from a locality where residence had given him long acquaintance with the people, and who was otherwise by intelligence and character fitted for the selection of pure, impartial, upright, and intelligent men to perform the grave service to the public and to the prisoners who were involved in this prosecution.”

So what is complained of here was done there. It was challenged by exceptions of the defendant. It was passed upon by the Circuit Court of Appeals, and my action was affirmed. It is perhaps the latest and most conclusive deliverance upon the subject. The fact that the Supreme Court of the United States, after careful inquiry, refused to grant even a certiorari to carry up the record, discloses how little regard that great tribunal had to the complaints of error which were numerously made in that case.

But this is not the only case in point. There are a great many others. Shortly after the adoption of this act, as early as 1810, it was held in the case of United States v. Price, Fed. Cas. No. 16,088:

“It is discretionary with the court to give in its pleasure any direction as to the summoning of the jury from any part of the district. If the defendant desires that such directions should be given, he should make application to the court therefor.”

This is a privilege which the defendant it is plain may seek as well as the government.

In the Case of Ayers (D. C.) 46 Fed. 651, it was held by so great a judge as Judge Shiras that the direction by the court that the panel of the grand jury shall be summoned from a certain part of the district is allowed by the Revised Statutes of the United States, § 802, and is not in conflict with the constitutional amendment which provides :

“In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by sui impartial jury of the state and district wherein, the crime shall have been committed, which district shall have been previously ascertained by law.”

That experienced judge declared, with reference to this provision of the statute law adopted by the First Congress:

“This provision of the statute, authorizing the courts to direct what part-of 1he district a given jury, grand or petit, shall be summoned from, has' remained a part of the statute law since its adoption in 1789, and now forms-section 802 of the Revised Statutes, and I have no doubt that it has been acted upon in all, or nearly all, the districts of the Union. Its constitutionality cannot be successfully impeached at this late day, and that its; provisions fully sustain the action of the court in directing that the grand jury summoned for the term at Sioux Falls, and which found,the present indictment, should be drawn from the parts of the district named in the venire.”

Now can it he denied that the court may direct the clerk or the marshal how many jurors it wants? No one has denied that power. If he can summon them from any part of the district, in his discretion, and if he can tell the officers how many he wants, why can he not tell 1hem that he wants 8 from the county of McIntosh, or 79 or 150 from the county of Chatham? The truth is, I do not doubt that the county of Chatham has more jurors by many in the two boxes, which are interchangeable, than has any other county in this Southern district of Georgia.

Also, in this plea of abatement, it is complained that there was but one juror from Savannah. Appling had none; Bryan, none; Camden, none; Effingham, the home of the Salzburgers, none; McIntosh, none; Tattnall, none; and Wayne, none. Where is the discrimination? And then, also, there were five counties which got only as many as Chatham. Why, there is nothing wrong about that. No one can discover even a toe hold to stand on for criticism of the court in drawing that jury.

[2] But the law is cumulative upon this subject. I quote from the decision of a great jurist; sitting at circuit. He is dead now, but all, when his name is mentioned, will recognize his eminent, original, and clear-sighted judicial power. It was the late Associate Justice Brewer of the Supreme Court of .the United States, sitting at circuit, then, I believe, Circuit Judge. It is the case of United States v. Eagan, 30 Fed. 608, and decided in 1887, nine years after the statute was enacted which the learned counsel for the defendant declares repeals this statute by virtue of which these jurors were drawn :

“I might stop here,” said Judge Brewer, “and yet I desire to add a word in reference to this act of 1879. I do not think that it carries the meaning or bears the construction which counsel have put upon it. Nor do I think that sections 802, 804, and 80S (U. S. Comp. St. 1901, pp. 625, 626) are repealed by implication by it. Repeals by implication are never favored.”

In addition to that, Judge Thayer, who was the Circuit Judge sitting in that case with Judge Brewer, added the following comment:

“I am of the opinion that the act of June 30, 1879, with reference to drawing jurors, grand and petit, for the courts of the United States, has not repealed section 802, 804, or 808, Revised Statutes, as has been urged on the hearing of this demurrer.”

Judge Pardee has passed upon this identical question in United States v. Chaires (C. C.) 40 Fed. 820, and surely the acute and penetrating mind of that great and experienced judge would not have missed the point in this case when he held that all of the grand jurors might be drawn from the county of Eeon. That was ten years after the act of 1879 was passed. The jurors were taken out by the clerk and the marshal, as is the practice in Florida, from the jury box, just as the judge takes them out here, and the court held that section 802 of the Revised Statutes, which is the act of 1879, had not been repealed.

So the weight of authority and the reason of the law I think make it necessary for me to sustain the demurrer, and overrule the plea in abatement, which has been argued with such ability on both sides.

[3] As to the juror who was a member of the board of education of his county, I will say that it is not alleged in the plea in abatement that he was a member of that board at the time he was summoned, and this the statute requires. Nor do I regard tire objection of any consequence. The commissioner of education could not be a member of the grand jury of the state court, because that body may review his official action. “Cessante ratione legis, cessat ipsa lex.”

[4] The averment that the action of the court was to the manifest injury of the defendant is altogether insufficient. Flow is the injury manifest? Can we discover it from the plea? The pleading must be taken most strongly against the pleader. There is nothing said against any of these jurors. They are presumed to he good men and true. They are presumed to be impartial. There is not a single injurious fact alleged, and under the cheerful generality expressed by the words "‘manifest injury” the court can discover no injury whatever.