Sessions, J. (orally):
I. think I will dispose of this matter at the present time. In so doing I trust counsel will not think that I am reaching a decision hastily or without due consideration, because every spare moment I could get since the list of authorities was furnished me on Friday has been given to a study of the matters that are involved. Prior to receiving the list of authorities I had examined many of them, and since then I have examined all of them very fully.
At the outset I may say that I am entirely in accord and in sympathy with the utterances of one of the counsel for the de[347]*347fendants concerning the unwarranted and unjustifiable assaults and attacks that have been made in recent times upon the courts and the judiciary, perhaps for political purposes, perhaps for the purpose of first creating and then satisfying popular clamor. I am also in accord with counsel with reference to the fact that we are to be congratulated that the popularity of such assaults and attacks is waning, if it is not already a thing of the past. I have scant patience with any person who advocates the disregard of the great principles and precedents which have been established through many years of experience and which are the result of the combined wisdom of many generations of men, and which stand for the safeguarding and protection of the rights and liberties of the people. On the other hand, I have little more patience with mere technicalities and with such narrow constructions of laws relating to procedure that the following of such constructions would tend more to the obstruction of justice than to the furtherance of its ends and purposes.
I do not care to pass upon some of the contentions that are made by counsel, and I say that without regard to the merits or want of merits of such contentions, because I believe that the decision of these matters can be placed upon broader and higher grounds than some of those which have been urged.
Among the contentions of counsel which I do not care to pass upon is the one that these pleas in abatement are insufficient in that the conclusions or prayers are in bar instead of in abatement.
Another contention that I do not care to pass upon is that the averments in the pleas of want of knowledge and information as to the presentment of the indictment, and as to the allegations of the indictment, and as to the regularity of the proceedings in summoning and drawing the grand jurors who presented the indictment, follow the tenders of issue and therefore are mere surplusage, adding nothing to the pleas. It does [348]*348not seem, to me necessary to pass upon that contention or to say that it is with or without merit.
Coming then to the specific and. substantial questions 'presented by the pleas: First, as to plea in abatement No. 1. It is here claimed that the indictment is invalid and insufficient and ought to be quashed because it was not returned and presented by a legally constituted grand jury, in that a person, who was not authorized so to do, placed some of the names in the jury box from which the grand jurors were drawn, and the clerk of this court, upon whom that duty is imposed by statute, did not act. It is true that the averments and allegations of a plea in abatement must be made with strict and exact accuracy. This requirement is not technical, or at least if it is technical, it is meeting one technicality with another. In cases where special injury is not alleged, save such injury as may follow from a failure to observe the necessary requirements of the law, strict accuracy ought to be required. I do not think this plea in abatement can be sustained for two reasons: First, I am unwilling to subscribe to the doctrine that a deputy clerk may not act under any circumstance in the placing of names in the jury list or in the jury box. Congress in its wisdom has seen-fit to authorize the appointment of deputy clerks. With some exceptions, the duties of deputy clerks are not specifically defined or prescribed. It must be assumed that Congress intended that the word 46 deputy ” should have its ordinary and usual meaning, and thus that the deputy clerk, under certain conditions, might act in the place of the clerk. He is a person to whom the duties of clerk are deputed. That is the ordinary and natural meaning of the word. And in the event that the clerk of the court is incapacitated, is absent, cannot be present, is sick, or disabled, and cannot perform the duty which the law» imposes upon him, under such circumstances, I believe that the deputy clerk may act. It is true that Congress has seen fit, for purposes with which we are all acquainted, historically at least, [349]*349to provide that the commissioner who is appointed by the judge must be of an opposite political faith to the clerk. It is also true, within my own personal knowledge, and is a matter of which I think the court may take judicial notice, that in many districts where court is held in different places in the district and where the law provides that a deputy clerk shall be appointed with his residence and office at a place different from that of the clerk, the deputy clerk does draw the jury and does place the names in the box from which the jurors are drawn. This practice prevails in a number of districts to my knowledge, and the validity of the procedure has never, so far as I know, been questioned, and to my mind such practice accords with the spirit and the letter of the law. It is but fair to say that in those instances a jury commissioner is appointed who is of the opposite political faith to the deputy clerk, and thereby the requirements of the statute are satisfied. There is no reason why more than one jury commissioner may not be appointed. The statutes impose no limitations in that regard. There is no allegation in this plea in abatement that Mr. Tallman, who it is conceded was a deputy clerk at the time, was not a member of a party of the opposite political faith from that of the commissioner.
Another reason why plea in abatement No. 1 cannot be sustained is this: It is alleged that Mr. Tallman placed in the box certain names, and I think fairly alleged that those names were in the box at the time this grand jury was drawn. It is not alleged that all the names in the box were placed there either by the commissioner or by this deputy clerk. In fact, the fair inference is to the contrary. There is no allegation in this plea that any one of the grand jurors who were drawn and acted and returned this indictment was one of the jurors whose name had been placed in the box by Mr. Tallman. It is not sufficient to say that the defendants in this case do not know whether or not vany of the names placed in the box by Mr. Tallman was drawn. [350]*350The averments of the plea must be made with certainty and with accuracy and completeness.
Upon these two grounds, without considering the other questions that have been raised or the other objections that' have been urged, the demurrer to this plea should be sustained and the plea in abatement overruled.
The second plea in abatement is without merit. The plea utterly ignores an order of this court which was fully justified and expressly authorized by the provisions of the Judicial Code (secs. 8 and 284).
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Sessions, J. (orally):
I. think I will dispose of this matter at the present time. In so doing I trust counsel will not think that I am reaching a decision hastily or without due consideration, because every spare moment I could get since the list of authorities was furnished me on Friday has been given to a study of the matters that are involved. Prior to receiving the list of authorities I had examined many of them, and since then I have examined all of them very fully.
At the outset I may say that I am entirely in accord and in sympathy with the utterances of one of the counsel for the de[347]*347fendants concerning the unwarranted and unjustifiable assaults and attacks that have been made in recent times upon the courts and the judiciary, perhaps for political purposes, perhaps for the purpose of first creating and then satisfying popular clamor. I am also in accord with counsel with reference to the fact that we are to be congratulated that the popularity of such assaults and attacks is waning, if it is not already a thing of the past. I have scant patience with any person who advocates the disregard of the great principles and precedents which have been established through many years of experience and which are the result of the combined wisdom of many generations of men, and which stand for the safeguarding and protection of the rights and liberties of the people. On the other hand, I have little more patience with mere technicalities and with such narrow constructions of laws relating to procedure that the following of such constructions would tend more to the obstruction of justice than to the furtherance of its ends and purposes.
I do not care to pass upon some of the contentions that are made by counsel, and I say that without regard to the merits or want of merits of such contentions, because I believe that the decision of these matters can be placed upon broader and higher grounds than some of those which have been urged.
Among the contentions of counsel which I do not care to pass upon is the one that these pleas in abatement are insufficient in that the conclusions or prayers are in bar instead of in abatement.
Another contention that I do not care to pass upon is that the averments in the pleas of want of knowledge and information as to the presentment of the indictment, and as to the allegations of the indictment, and as to the regularity of the proceedings in summoning and drawing the grand jurors who presented the indictment, follow the tenders of issue and therefore are mere surplusage, adding nothing to the pleas. It does [348]*348not seem, to me necessary to pass upon that contention or to say that it is with or without merit.
Coming then to the specific and. substantial questions 'presented by the pleas: First, as to plea in abatement No. 1. It is here claimed that the indictment is invalid and insufficient and ought to be quashed because it was not returned and presented by a legally constituted grand jury, in that a person, who was not authorized so to do, placed some of the names in the jury box from which the grand jurors were drawn, and the clerk of this court, upon whom that duty is imposed by statute, did not act. It is true that the averments and allegations of a plea in abatement must be made with strict and exact accuracy. This requirement is not technical, or at least if it is technical, it is meeting one technicality with another. In cases where special injury is not alleged, save such injury as may follow from a failure to observe the necessary requirements of the law, strict accuracy ought to be required. I do not think this plea in abatement can be sustained for two reasons: First, I am unwilling to subscribe to the doctrine that a deputy clerk may not act under any circumstance in the placing of names in the jury list or in the jury box. Congress in its wisdom has seen-fit to authorize the appointment of deputy clerks. With some exceptions, the duties of deputy clerks are not specifically defined or prescribed. It must be assumed that Congress intended that the word 46 deputy ” should have its ordinary and usual meaning, and thus that the deputy clerk, under certain conditions, might act in the place of the clerk. He is a person to whom the duties of clerk are deputed. That is the ordinary and natural meaning of the word. And in the event that the clerk of the court is incapacitated, is absent, cannot be present, is sick, or disabled, and cannot perform the duty which the law» imposes upon him, under such circumstances, I believe that the deputy clerk may act. It is true that Congress has seen fit, for purposes with which we are all acquainted, historically at least, [349]*349to provide that the commissioner who is appointed by the judge must be of an opposite political faith to the clerk. It is also true, within my own personal knowledge, and is a matter of which I think the court may take judicial notice, that in many districts where court is held in different places in the district and where the law provides that a deputy clerk shall be appointed with his residence and office at a place different from that of the clerk, the deputy clerk does draw the jury and does place the names in the box from which the jurors are drawn. This practice prevails in a number of districts to my knowledge, and the validity of the procedure has never, so far as I know, been questioned, and to my mind such practice accords with the spirit and the letter of the law. It is but fair to say that in those instances a jury commissioner is appointed who is of the opposite political faith to the deputy clerk, and thereby the requirements of the statute are satisfied. There is no reason why more than one jury commissioner may not be appointed. The statutes impose no limitations in that regard. There is no allegation in this plea in abatement that Mr. Tallman, who it is conceded was a deputy clerk at the time, was not a member of a party of the opposite political faith from that of the commissioner.
Another reason why plea in abatement No. 1 cannot be sustained is this: It is alleged that Mr. Tallman placed in the box certain names, and I think fairly alleged that those names were in the box at the time this grand jury was drawn. It is not alleged that all the names in the box were placed there either by the commissioner or by this deputy clerk. In fact, the fair inference is to the contrary. There is no allegation in this plea that any one of the grand jurors who were drawn and acted and returned this indictment was one of the jurors whose name had been placed in the box by Mr. Tallman. It is not sufficient to say that the defendants in this case do not know whether or not vany of the names placed in the box by Mr. Tallman was drawn. [350]*350The averments of the plea must be made with certainty and with accuracy and completeness.
Upon these two grounds, without considering the other questions that have been raised or the other objections that' have been urged, the demurrer to this plea should be sustained and the plea in abatement overruled.
The second plea in abatement is without merit. The plea utterly ignores an order of this court which was fully justified and expressly authorized by the provisions of the Judicial Code (secs. 8 and 284). The Federal Courts have decided that a proceeding before a grand jury is a “ case ” or “ cause.” In and by section 284 of the Judicial Code, Congress has provided that the “ court may in term order a grand jury to be summoned at such time, and to serve such time as it may direct, whenever, in its judgment, it may be proper to do so.” The apparent purpose of this legislation was to provide a way in which a grand jury, with the permission of the court, may complete and conclude any investigation which it has actually commenced. In a district like this one, having monthly terms of court, it must frequently happen that a grand jury will not be able to conclude its work upon a long and complicated case before the expiration of one term and the commencement of another. If, under such circumstances, a grand jury cannot be permitted to finish its labors, there will follow much unnecessary expense, many unfortunate delays, frequent and severe hardships for the accused, and, sometimes, a complete failure of justice. The statute plainly provides a sure and simple means of avoiding these and other serious evils.
The third plea in abatement presents somewhat more serious difficulties. I cannot agree with counsel for the defendants in what may be termed a prophecy that the courts and Congress will soon decide and determine that stenographers shall not be permitted in the grand jury room except under severe restrictions and with enlarged privileges to the accused. In my judg[351]*351ment, without indulging in prophecy, a contrary result would follow such statutory limitations and restrictions. It seems to me that if the testimony given before the grand jury may not under any circumstances or conditions be made a matter of record and reference we are opening the doors very wide and inviting not only perjured and incompetent testimony, but even gossip and conjecture, before the grand jury. The proceedings there are not in strict accord with the proceedings in the trial of a case, and if no safeguards are provided many witnesses may be influenced or persuaded or induced to indulge in statements and accusations which ought not to be permitted or tolerated. But we do not need to indulge in speculation in that regard. More than fifty years ago, in 1852, a circuit judge of this circuit, when the question was squarely presented to him, held that the presence of an assistant and clerk to the district attorney did not vitiate an indictment returned by the grand jury whose sessions he attended. That decision went unchallenged for very many years. In 1891, more than twenty-three years ago, a judge of this court, again passing upon the exact question which is here presented, affirmed the ruling in the earlier case. The rule of law thus announced has been accepted and acted upon in this district from that time to the present. In two later cases in this district the rule of law announced in the earlier decisions has been at least impliedly sanctioned and affirmed, Judge Hough specially, although obiter, holding that the presence of a stenographer in- the grand jury room during the proceedings did not invalidate an indictment. I would not think the question difficult or serious were it not for a very recent decision by a learned district judge of this circuit, presiding in another district. A careful examination of the opinion and decision in that case shows that the contention there made for sustaining the indictment was that the presence of the stenographer in the [352]*352grand jury room was authorized by the 1906 Act of Congress. In my judgment the statute of 1906 has nothing to do" with and has no application to the question presented by this plea, the language of the plea is somewhat vague and uncertain, but I cannot agree with counsel that it fairly avers that the sole authority for the presence of the stenographer in the grand jury room was derived from the letter of appointment of the attorney-general. The plea, in so many words, states that the stenographer was present under the direction of the district attorney. He was a clerk and assistant to the district attorney, although not an attorney at law and not an assistant district attorney. The district attorney can have no clerical assistance save such as is authorized by the attorney-general, and his clerical assistants cannot be compensated except under the authority and with the approval of the attorney-general. The prohibition against the presence of outsiders in the grand j ury room during the taking of testimony arises by reason of the requirement of secrecy concerning the proceedings, and not from legislative enactment. In the instant case the required oath of office was taken and filed by the clerk and assistant who acted as stenographer, and the secrecy of the proceedings of the grand jury was thereby preserved.
The demurrers to the pleas will be sustained and the pleas will be overruled.
Mr. Swacker: I move judgment respondeat ouster and that they be required to file their new answers forthwith. They have had about four weeks since the return of this indictment.
Mr. Lindsay: Will you permit us to file our joinders so that the record may be clear, to-morrow as of to-day?
The Court: The joinders will be received to-morrow, and they will be filed as of this date.
Mr. Lindsay: And may we take an exception to your honor’s ruling, in each instance, for each defendant?
[353]*353The Court: Yes, sir, as to each of the defendants, and upon each plea.
Mr. Lindsay: And that the joinders may be filed by counsel without the personal signature of the defendants.
The Court: I think the record should be made complete and formal; but the clerk will file the joinders as of to-day.