196 F. 317 | 2d Cir. | 1912
The next point raised is that “defendant’s legal right to peremptorily challenge a juror at any time before the jury was sworn was curtailed.” What happened was this: Twelve men were drawn from the panel and took seats in the box. Defendant then examined them on their voir dire. Apparently none of them were found to be disqualified. Thereupon counsel asked leave “to reserve their peremptory challenge of the jury as it stands until after the government has examined the jury.” This was denied, except so far as the panel may be changed by the challenges of the prosecution, and the court “directed the counsel to exercise any challenges it may have in this panel at the present time,” whereupon defendant used its three peremptory challenges. Thereafter the government examined the panel and exercised one peremptory challenge.
The order in which peremptory challenges shall be exercised is a matter of practice which varies in different districts. In the Southern District of New York, as appears from this record, the defendant begins; in the Northern District and in the District of Vermont the practice is the other way. In Radford v. U. S., 129 Fed. 49, 63 C. C. A. 491, in the hope that some uniformity might be established in the circuit, we indicated a method of challenging which was apparently simple and absolutely impartial. But such indication was, of course, not constraining. It is settled by controlling authority that the order in wdiich peremptory challenges shall be exercised is a matter within the discretion of the trial judge. Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208.
But the point here raised is not addressed! to the order in which these challenges shall be exercised. The real question is whether defendant was required! to exercise his peremptory challenges prematurely. The argument is that neither side should be required to exercise these challenges until the box is filled with 12 men qualified to sit. It could not be known until after the prosecution had finished its examination on the voir dire whether all of the twelve men then in the box were qualified. There seems much force in the argument that peremptory challenges should he reserved until the box contains only men who, if not challenged peremptorily, will sit to try the cause; and it may be noted that in the Pointer Case the Supreme Court was careful to state that the jurymen tendered to both sides for peremptory challenge were “found to be qualified under the law and not subject to challenge for cause.”
It is not necessary to decide the question raised here, because it is but an academic one. The government’s examination on the voir dire did not discover that any one of the twelve men was not qualified under the law, or was subject to challenge for cause. Therefore, had the government been required to examine before defendant was required to challenge, the latter would have found the same men in the box who were there when he did challenge.
The remaining assignments of error are technical and unimportant. It is unnecessary to discuss them. We are fully satisfied from an
The judgment is affirmed.