DILLON, Circuit Judge.
It is essential to a proper disposition of the motion for a new trial to determine the nature of the plea in abatement. The language of the plea appears above. After carefully considering it, our opinion is that the gravamen of the plea is that the parties named (sustaining the relation to the defendant described therein) “became members of the grand jury which found the bill, at the instance and denomination of the said D. L. How.” All that precedes this averment is introductory, and intended to show why it was improper, and prejudicial to the rights of the defendant that these parties should have served on the grand jury which indicted him.
It is not believed that it was the purpose of the pleader improperly to set forth in one plea three distinct matters in abatement, to-wit: (1) That How was the prosecutor. (2) That he was the prosecuting witness along with Hall. (3) That the three parties named became grand jurors at the instance of How; but rather that it was the purpose to set forth the one ground above stated.
Pleas of this character are dilatory, and not being favored, the law requires that they shall contain all essential averments, pleaded with strict exactness. O’Connell v. Reg., 11 Clark & F. 155, 9 Jur. 25; Com. v. Thompson, 4 Leigh, 667; State v. Newer, 7 Blackf. 307; Wilburn v. State, 21 Ark. 198; Hardin v. State, 22 Ind. 347; Lewis v. State, 1 Head, 329.
The plea in abatement seems to be drawn as if founded upon the celebrated and ancient statute of 11 Hen. IV. c. 9, passed in 1410, and which may be found set out in Bac. Abr. “Juries,” A, 233. This statute, after reciting the abuses which led to its enactment, declares: “Henceforth no indictment shall be made by any such (improper) persons, but only by inquests of the king’s lawful liege people * * * returned by the sheriff * * * without any denomination to the' sheriff, by any person of the names which by him should be impannelled, except it be by officers sworn and known to make the same; * * * and if any indictments be hereafter made in any point to the contrary, that the same indictment be also void, revoked, and forever holden for none.”
The plea then, in this case, is to be taken as setting forth that the indictment should not be prosecuted, because the persons mentioned in the plea were, by an interested party, viz., Mr. D. L. How, caused to be placed on the grand jury which found the bill.
The question is not now directly before us whether such a plea is good in the federal courts. Undoubtedly such an objection is good if taken by a person under prosecution, or who has been held to answer, by way of challenge, before the jury is sworn or the indictment found.
Whether in the case of a person not previously bound over it may be taken after a bill found by plea in abatement or motion to quash, the authorities are not entirely agreed. As tending to show that it must be taken before indictment is found, see Bac. Abr. “Juries,” A, 233; People v. Jewett, 3 Wend. 314, 6 Wend. 386; Com. v. Smith, 9 Mass. 107. Compare Com. v. Parker, 2 Pick. 563; State v. Rickey, 5 Halst. [10 N. J. Law] 83; Thayer v. People, 2 Doug. (Mich.) 417; Baldwin’s Case, 2 Tyler, 473; Rex v. Sheppard, 1 Leach, Crown Cas, 101.
But in many, indeed, from an examination of the authorities, I may say that in most- of American states it is held that where a party has not been recognized to answer, he may plead in abatement, if done seasonably, the want of statutory qualifications, such as-want [669]*669of citizenship, &e., in grand jurors who found the bill. Hardin v. State, 22 Ind. 347; Wilburn v. State, 21 Ark. 198; State v. Cole, 17 Wis. 674; Kitrol v. State, 9 Fla. 9; Stanley v. State, 16 Tex. 557, and other eases cited; Whart Cr. Law (2d Ed.) pp. 172, 173; and in State v. Ostrander, 18 Iowa, 435, note.
In the federal courts the sufficiency of pleas in abatement, in the absence of legislation by congress touching the question or authorized rules of court, must be tested by the principles of the common law. And by the common law it is undoubtedly true as stated by Mr. Wharton, that “if a disqualified person is returned as a grand juror it is good cause of challenge.” Whart. Cr. Law (2d Ed.) 170; 1 Chit. Cr. Law, 309. Mr. Ghitty at the place just cited states the doctrine thus: “If a disqualified juror be returned he may be challenged by the prisoner before bill presented; if the disqualification is discovered after-wards, the defendant may plead it in avoidance and answer over to the felony.” And see, also, Hawk. P. C. bk. 2, c. 25, § 16.
But the disqualification thus referred to is such as is pronounced by statute, and which absolutely disqualifies, such as alienage, non-residence, want of free-hold qualifications, where that is required, &c., and which would constitute cause of principal challenge as distinguished from challenge to the favor arising from bias, interest, and the like. See on this point, State v. Rickey and People v. Jewett, before cited.
But it is not necessary further to pursue the discussion of the subject in this place, for if the gravamen of the plea in the case at bar be such as we have above indicated, the fifth special finding of the jury is the material one, and by that the jury have negatived the truth of the plea by saying that neither - Hall nor How became members of the grand jury, which found the bill, at the instance or on the nomination of How. The finding of the jury on this point is not questioned by counsel, no motion for a new trial is made with respect to •it, and it is to be taken as conclusively correct. Thus taken, it is to be presumed that both Hall and How were properly selected to serve on the grand jury, and that they did not become members of it at the instance or by the procurement of How. In this view of the case, the third finding, concerning which the motion for a new trial is made, is, under the plea, immaterial; and if so, a new trial should not be granted thereon, even though the court should be, as it is, of opinion that the verdict of the jury on this issue was against the evidence.
The foregoing view is based upon the construction above given to the plea in abatement. But suppose, as the jury might have found from the evidence, or might yet find if a new trial should be granted as asked in the motion under consideration, that How was the prosecutor or prosecuting witness against the defendant, and suppose the plea be taken as intended to set this forth as the ground of abatement of the indictment, would the plea then be sufficient in law to work this result? This question must, in my opinion, for the reasons which I proceed to state, be also answered in the negative. By the act of congress referred to in the statement, jurors in the federal courts are required to “have the like qualifications and are entitled to like exemptions as jurors” in the highest courts of the state; by the statute of Minnesota it is provided that “all persons who are qualified electors of this state are liable to be drawn as grand jurors, except as hereinafter provided.” Rev. St 1866, p. 63b, § 3. The examinations consist of certain public officers, followers of certain professions and avocations, persons over a specified age, infirm persons and such as have been convicted of an infamous crime. The grand jury is directed to be selected by lot from a jury box containing names procured in a designated manner. Then follow the provisions referred to in the statement of the case authorizing any person held to answer for a public offense to challenge for the causes specified in the panel of the grand jury any individual .juror.
Free access — add to your briefcase to read the full text and ask questions with AI
DILLON, Circuit Judge.
It is essential to a proper disposition of the motion for a new trial to determine the nature of the plea in abatement. The language of the plea appears above. After carefully considering it, our opinion is that the gravamen of the plea is that the parties named (sustaining the relation to the defendant described therein) “became members of the grand jury which found the bill, at the instance and denomination of the said D. L. How.” All that precedes this averment is introductory, and intended to show why it was improper, and prejudicial to the rights of the defendant that these parties should have served on the grand jury which indicted him.
It is not believed that it was the purpose of the pleader improperly to set forth in one plea three distinct matters in abatement, to-wit: (1) That How was the prosecutor. (2) That he was the prosecuting witness along with Hall. (3) That the three parties named became grand jurors at the instance of How; but rather that it was the purpose to set forth the one ground above stated.
Pleas of this character are dilatory, and not being favored, the law requires that they shall contain all essential averments, pleaded with strict exactness. O’Connell v. Reg., 11 Clark & F. 155, 9 Jur. 25; Com. v. Thompson, 4 Leigh, 667; State v. Newer, 7 Blackf. 307; Wilburn v. State, 21 Ark. 198; Hardin v. State, 22 Ind. 347; Lewis v. State, 1 Head, 329.
The plea in abatement seems to be drawn as if founded upon the celebrated and ancient statute of 11 Hen. IV. c. 9, passed in 1410, and which may be found set out in Bac. Abr. “Juries,” A, 233. This statute, after reciting the abuses which led to its enactment, declares: “Henceforth no indictment shall be made by any such (improper) persons, but only by inquests of the king’s lawful liege people * * * returned by the sheriff * * * without any denomination to the' sheriff, by any person of the names which by him should be impannelled, except it be by officers sworn and known to make the same; * * * and if any indictments be hereafter made in any point to the contrary, that the same indictment be also void, revoked, and forever holden for none.”
The plea then, in this case, is to be taken as setting forth that the indictment should not be prosecuted, because the persons mentioned in the plea were, by an interested party, viz., Mr. D. L. How, caused to be placed on the grand jury which found the bill.
The question is not now directly before us whether such a plea is good in the federal courts. Undoubtedly such an objection is good if taken by a person under prosecution, or who has been held to answer, by way of challenge, before the jury is sworn or the indictment found.
Whether in the case of a person not previously bound over it may be taken after a bill found by plea in abatement or motion to quash, the authorities are not entirely agreed. As tending to show that it must be taken before indictment is found, see Bac. Abr. “Juries,” A, 233; People v. Jewett, 3 Wend. 314, 6 Wend. 386; Com. v. Smith, 9 Mass. 107. Compare Com. v. Parker, 2 Pick. 563; State v. Rickey, 5 Halst. [10 N. J. Law] 83; Thayer v. People, 2 Doug. (Mich.) 417; Baldwin’s Case, 2 Tyler, 473; Rex v. Sheppard, 1 Leach, Crown Cas, 101.
But in many, indeed, from an examination of the authorities, I may say that in most- of American states it is held that where a party has not been recognized to answer, he may plead in abatement, if done seasonably, the want of statutory qualifications, such as-want [669]*669of citizenship, &e., in grand jurors who found the bill. Hardin v. State, 22 Ind. 347; Wilburn v. State, 21 Ark. 198; State v. Cole, 17 Wis. 674; Kitrol v. State, 9 Fla. 9; Stanley v. State, 16 Tex. 557, and other eases cited; Whart Cr. Law (2d Ed.) pp. 172, 173; and in State v. Ostrander, 18 Iowa, 435, note.
In the federal courts the sufficiency of pleas in abatement, in the absence of legislation by congress touching the question or authorized rules of court, must be tested by the principles of the common law. And by the common law it is undoubtedly true as stated by Mr. Wharton, that “if a disqualified person is returned as a grand juror it is good cause of challenge.” Whart. Cr. Law (2d Ed.) 170; 1 Chit. Cr. Law, 309. Mr. Ghitty at the place just cited states the doctrine thus: “If a disqualified juror be returned he may be challenged by the prisoner before bill presented; if the disqualification is discovered after-wards, the defendant may plead it in avoidance and answer over to the felony.” And see, also, Hawk. P. C. bk. 2, c. 25, § 16.
But the disqualification thus referred to is such as is pronounced by statute, and which absolutely disqualifies, such as alienage, non-residence, want of free-hold qualifications, where that is required, &c., and which would constitute cause of principal challenge as distinguished from challenge to the favor arising from bias, interest, and the like. See on this point, State v. Rickey and People v. Jewett, before cited.
But it is not necessary further to pursue the discussion of the subject in this place, for if the gravamen of the plea in the case at bar be such as we have above indicated, the fifth special finding of the jury is the material one, and by that the jury have negatived the truth of the plea by saying that neither - Hall nor How became members of the grand jury, which found the bill, at the instance or on the nomination of How. The finding of the jury on this point is not questioned by counsel, no motion for a new trial is made with respect to •it, and it is to be taken as conclusively correct. Thus taken, it is to be presumed that both Hall and How were properly selected to serve on the grand jury, and that they did not become members of it at the instance or by the procurement of How. In this view of the case, the third finding, concerning which the motion for a new trial is made, is, under the plea, immaterial; and if so, a new trial should not be granted thereon, even though the court should be, as it is, of opinion that the verdict of the jury on this issue was against the evidence.
The foregoing view is based upon the construction above given to the plea in abatement. But suppose, as the jury might have found from the evidence, or might yet find if a new trial should be granted as asked in the motion under consideration, that How was the prosecutor or prosecuting witness against the defendant, and suppose the plea be taken as intended to set this forth as the ground of abatement of the indictment, would the plea then be sufficient in law to work this result? This question must, in my opinion, for the reasons which I proceed to state, be also answered in the negative. By the act of congress referred to in the statement, jurors in the federal courts are required to “have the like qualifications and are entitled to like exemptions as jurors” in the highest courts of the state; by the statute of Minnesota it is provided that “all persons who are qualified electors of this state are liable to be drawn as grand jurors, except as hereinafter provided.” Rev. St 1866, p. 63b, § 3. The examinations consist of certain public officers, followers of certain professions and avocations, persons over a specified age, infirm persons and such as have been convicted of an infamous crime. The grand jury is directed to be selected by lot from a jury box containing names procured in a designated manner. Then follow the provisions referred to in the statement of the case authorizing any person held to answer for a public offense to challenge for the causes specified in the panel of the grand jury any individual .juror.
Among the grounds of challenge to an individual grand juror is, “that he is a prosecutor upon a charge against the defendant;” and also, “that he is a witness on the part of the prosecution, and has been served with process, or bound by a recognizance as such.”
The statute provides that: “If a challenge to the panel is allowed, the grand jury are prohibited. from inquiring into the charges against the defendant by whom the challenge was interposed; if they should, notwithstanding, do so, and find an indictment against him, the court shall direct it to be set aside.” Rev. St. 1866, p. 638, § 18. The next section enacts that, “If a challenge to an individual juror is allowed he cannot be present at, or take part in, the consideration of the charge against the defendant who interposed the challenge, or the deliberation of the grand jury thereon. The grand jury shall inform the court of a violation of this provision, and it is punishable by the court as a contempt.” Id. §§ 19, 20.
The only other section of the Minnesota statute bearing upon the present inquiry, is the one which provides that a grand juror shall not be questioned for his acts as such, “except for a perjury, of which he may be guilty in making an accusation, or giving testimony to his fellow-jurors.” Id. p. 640, § 42.
Now we have seen, by the act of congress of July 20, 1840, that whoever is qualified to serve as a grand juror in the state courts is qualified to serve as such in the courts of the .United States. The argument on behalf of the defendant, based upon the act of congress just cited and the above-mentioned provisions of the Minnesota statute, is, that by the state statute a prosecutor or prosecuting witness is not qualified to serve as a grand juror in the state courts, and hence not qualified to serve in the courts of the United States.
[670]*670Now what does the word “qualification” mean in the act oi July 20, 1840, by which jurors in the federal courts are required to have the like qualifications, and are entitled to like exemptions, as jurors, in the state courts ? In my opinion, the word refers to the general qualifications as to age, citizenship, &e., not to special reasons which at the instance of a party accused and bound over may at his election amount to a disqualification to sit in his case, but which, if they exist, do not exclude the juror from the panel, but only preclude him from acting in the particular case. He is, nevertheless, if the challenge be sustained, a member of the grand jury (see State v. Ost-rander, 18 Iowa, 435, 441), the only effect being that he shall not “take part in consideration of the charge against the defendant, who interposed the challenge.”
I am aware that a different view on this point seems to have been taken by a most distinguished judge (Nelson, J., in U. S. v. Reed [Case No. 16,134]), from whose opinion I differ with the most unaffected distrust of the correctness of my own judgment.
But suppose I am mistaken on this point, yet I think it clear that when all the provisions of the Minnesota statute are considered, it is manifest that where there has been no previous holding of the party to answer, the statute as to, challenging jurors does not apply, and that the statute itself contemplates that a grand juror “may make an accusation, or give testimony to his fellow-jurors.”
The jury.in the case under consideration have found that How (who in the view we are now taking of the question may be admitted to be the prosecutor or prosecuting witness) did not procure himself to be placed upon the panel. He is to be regarded as having been legally selected and summoned to serve on the grand jury. Being thus properly on the grand jury, without any agency or intervention of his own, suppose he knows of a public offence having been committed within the jurisdiction of the court, and of a nature cognizable by the jury of which he is a member; can he not disclose it to his fellow-jurors? Is it not, indeed, his duty to do so? If he knows any material fact may he not be sworn as a witness before the jury? Indeed, is it not his duty, in such a case, to be sworn, especially if required to do so by the jury? These questions must all,-1 think, be answered affirmatively. And in my opinion it does not alter the matter, or vitiate the indictment, if the juror should happen to be the party injured, and hence the prosecutor or prosecuting witness, always assuming that he was selected and put upon the jury without any improper act or influence of his own.
That such a grand juror is not disqualified within the contemplation of the statute, is a fair if not necessary inference from the provision before cited, exempting a grand juror from liability for his act3 as such, “except for a perjury, of which he may be guilty in making an accusation, or giving testimony, to his fellow-jurors.” This language clearly presupposes that a juror may make an accusation, and may testify as a witness concerning it.
In England, it is said that a grand jury may find a bill on their own knowledge (Reg. v. Russell, 1 Car. & M. 247); how much better to find it upon the sworn evidence of one or more of their own number.
Other considerations fortify the above views. At common law the grand jury may consist of any number between twelve and twenty-three; but to find a bill there must at least twelve of the jury agree. 4 Bl. Comm. 302, 306; and cases and authorities cited, 18 Iowa, 442.
By the act of congress of March 3, 1865 (13 Stat 500), it is provided that grand juries in the courts of the United States “shall consist of not less than sixteen and not exceeding twenty-three persons, * * * and that no indictment shall be found without the concurrence of at least twelve grand jurors.” The earlier authorities show that the accusing body now called the grand jury originally consisted of twelvé persons, and all were required to concur. The number was subsequently enlarged to twenty-three, which was the maximum. See authorities cited, 18 Iowa, 442. Undoubtedly one reason why both at common law and by act of congress more jurors are required to be summoned, and by the act of congress to be impannelled than are necessary to find a bill, is to prevent, on the one hand, the course of justice from being defeated if the accused should have one or more friends on the jury; and on the other hand, the better to protect persons against the 'influence of unfriendly jurors upon the panel.
In any view which I have been able to take of the eas'e the motion for a new trial must be denied; and on the verdict of the jury a judgment will be entered overruling the plea in abatement, and allowing the defendant to enter a plea of not guilty.