48 App. D.C. 190 | D.C. Cir. | 1918
Lead Opinion
delivered the opinion of the court:
The government contends: First, “that the defendant suffered no prejudice in this matter, inasmuch as the law authorizes, in adultery cases, proof that the woman was reputed to be a prostitute, and that the house was reputed to be a bawdy-house;” and, second, that the record discloses no challenge, either peremptory or for cause, of the alleged objectionable jurors, nor does it show the peremptory challenges to have been exhausted.
Article 6 of the Amendments to the Constitution declares that “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * * to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.” It is admitted that the government introduced evidence on the trial of Margaret Stout, that defendant “was a frequenter for immoral purposes of a house of prostitution” kept by her. It also is admitted that the trial court sharply brought the identity of defendant to the attention of the jury, while there was upon the stand a witness whose testimony in the present case was relied upon by the government to establish defendant’s guilt under one count of the' indictment against him. Defendant could take no part whatever in that trial, although his interests were vitally involved. He was not confronted with the wit
The second contention of the government is equally untenable. The right of challenge has its source in the common law, and always has been held essential to a trial by jury. In Lewis v. United States, 146 U. S. 370, 376, 36 L. ed. 1011, 1014, 13 Sup. Ct. Rep. 136, the court quotes from Blackstone and Story, who said that the right of challenge is “a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous.” It is an arbitrary and absolute provision, and permits an accused to exclude from the jury and juror against whom he entertains prejudice, although not founded upon any reason rvhich would disqualify him. People v. McQuade, 110 N. Y. 284, 1 L.R.A. 273, 18 N. E. 156. Of what practical use, therefore, would be this provision if the government’s contention bo accepted? In the present case we have found that, upon the admitted facts, every member of the
But, says the government, defendant should have examined the jurors upon a voir dire for the purpose of determining “whether or not those jurors were prejudiced against defendant or would be prejudiced against him.” Having brought to the attention of the court undisputed facts which showed beyond question the disqualification of those jurors, we think defendant fully protected his rights. He told the court, as plainly as he could, that he was dissatisfied with every member of the panel, and the reasons he gave left no room for doubt. There was no fact in dispute. Why, then, was it necessary to examine the jurors? “In such circumstances it was unnecessary to go through the idle form of articulating the obvious.” Kansas City Southern R. Co. v. Jones, 241 U. S. 181, 183, 60 L. ed. 943, 945, 36 Sup. Ct. Rep. 513. Had any juror insisted that he was not prejudiced, his answer would have been inconsistent with human experience. Dilworth v. Com. 12 Gratt. 689, 65 Am. Dec. 264. We rule, therefore, that under the admitted facts the refusal of the court to grant one of these motions deprived defendant of a very substantial right, and amounted to such an abuse of discretion as to require a reversal of the case.
It is next contended that sec. 1024 of the Eevised Statutes, Comp. Stat. 1916, sec. 1690, authorizing the joinder of of
We come now to a more serious question. In the first count of the indictment defendant was charged with the commission of adultery on or about the 5th day of March, 1915, and in the second count on or about the 10th day of April of the same year. At the opening of the trial the defendant, through his counsel, moved the court to require the government to notify him whether the government would undertake to prove offenses as of the dates alleged in the indictment, and, if not, “to otherwise identify the two specific transactions.” Counsel for the government finally said that the offense laid in the first count “was committed between the 23d day of February and the loth
It appears, therefore, that notwithstanding evidence was introduced tending to show “repeated offenses of adultery” covering a period of more than a year, and including the period named by the government at the opening of the case, not until his counsel was called upon to argue his case to the jury did defendant know upon which offenses the government would ask a conviction. He was embarrassed and prejudiced in the introduction of evidence in defense by this lack of knowledge. In People v. Flaherty, 162 N. Y. 540, 57 N. E. 73, such a practice was severely condemned, and in State v. Norris, 122 Iowa,
One other question requires attention at this time. The court sentenced defendant under sec. 316 of the Federal Penal
There are other assignments of error, but, since they relate to questions that are not likely to arise at another trial, we do not notice them here.
Judgment reversed and cause remanded for a new trial.
Reversed.
Dissenting Opinion
dissenting:
I cannot consent to that part of the decision of the court ordering a new trial.
Of course the defendant was entitled to a fair trial. This
According to defendant’s affidavit, which we must assume was made as strong as the facts would permit (Stephen v. Beall, 22 Wall. 329, 339, 22 L. ed. 786, 788), the only testimony given in the Slout Case with respect to him was to the effect that he had frequented the Stout woman’s house, and had on one occasion “stayed upstairs at the time of an altercation between her and a male visitor.” If he had denied this, or had produced no evidence at all upon the subject, there might be some ground for his contention that the jury was biased by the testimony which they had heard, but he did not follow that course. Instead he took the stand and admitted substantially all that he alleged in his affidavit the jurors had heard. lie averred that as a police officer he was assigned to the “red light” district, and that his work took him into houses of ill fame; that he knew the Stout woman when she kept such a house in this city; that he had been in her house and in apartments operated by her a number of times by himself and with other police officers; that he had a real estate transaction with her and that some of his visits were with respect to it, but asserted that he had not committed with her the offense charged. The jurors, then, had learned nothing from the testimony in the Stout case concerning him which he did not voluntarily admit upon his own trial.
The two motions which he filed were in the nature of attacks upon the array. Such attacks, with some rare exceptions, relate only to the summoning of the panel, and have no concern with the qualities of individual jurymen. 16 H. C. L. 57. Their unfitness to sit in a case is not properly raised by motions supported by an ex parle affidavit, as was done here. Every practising lawyer knows that affidavits are very unsatisfactory means for developing the truth. The appropriate method is by questions addressed to the individual jurors upon their voir dire. In the case at bar, if the jurors had been individually interrogated by the defendant and the government as to whether
Of course I do not mean to say that, in every instance where a prospective juror declares that his opinion would not influence him as a juryman, the court should accept his statement as true. Each case must depend upon its own circumstances. The disposition of the matter lies in the sound discretion of the trial court; and the exercise of that discretion will not be disturbed, says this court in the Miller and Paolucci Cases, except where the discretion has been abused, — where there is absolutely nothing to sustain the decision reached. “The case must be one in which it is manifest the law left nothing to the ‘conscience or discretion of the court.’ ” Reynolds v. United States, 98 U. S. 145, 156, 25 L. ed. 244, 246. This cannot be said of the case before us.
Assuming the jurymen were prejudiced against the defendant, he waived any right which he had to object to their sitting in his case. Queenan v. Oklahoma, 190 U. S. 548, 551, 47 L. ed. 1175, 1178, 23 Sup. Ct. Rep. 762; Alexander v. United States, 138 U. S. 353, 34 L. ed. 954, 11 Sup. Ct. Rep. 350; Thompson v. State, 109 Ga. 272, 34 S. E. 579. The overruling of the motions did the defendant no harm. His complaint is with regard to the action of the court in receiving the jurors as triers of his case, but he made no objection to this action at the time it took place, either by challenging the jurors for cause, or by peremptorily challenging them. “It is the duty of counsel,” says the Supreme Court of the United States in tlie Alexander Case, “seasonably to call the attention of the court to any error in impaneling the jury, * * * and in case of an adverse ruling to note an exception.” “Seasonably,” I take it, means at the time the action is taken from which the prejudice results. In the Thompson Case the court, speaking of the qualifications of the jurors, said: “In order to determine whether they were competent or not a remedy was afforded, not by challenge to. the array, but by challenge to the poll and each separate juror put upon his voir dire to ascertain his state of feeling toward the defendant before he assumed his public duty as a juror in the trial of the case. This was not done, and the partiality of the jurors was not questioned in any legal way, and it must therefore be held, in the absence of the exercise of his right by the defendant, that the jurors were competent.” This language is very pertinent to the case before us.
Moreover, it is a general principle, to which possibly there
And if the court had refused to reject the unfit jurors, defendant would still have his remedy by peremptory challenges, but he failed to use even that. I know it is said that when his counsel stated during the argument that he had exhausted ■ all his peremptory challenges, the government’s counsel did not deny it. What the government’s counsel said was that the record did not show that the defendant had exhausted his peremptory challenges. This is in harmony with correct practice, and should have been sufficient to destroy any effect which the statement of defendant’s, counsel might otherwise have had. We should not consider anything outside the record unless we are prepared to establish the loose and indecorous method of resorting to a debate at the bar, instead of the record, for the purpose of learning what- took place in the lower court.
The record reveals that seven of the jurors who sat in the
Furthermore, it seems to me that this subject is completely disposed of by sec. 919 of the Code. It says: “No verdict shall be set aside for any cause AA’hich might be alleged as ground for challenge of a juror before the jury are SAVorn, except when the objection to the juror is that he had a bias against the defendant such as would have disqualified him, and such disqualification Avas not known to or suspected by the defendant or his counsel before the juror Avas sworn.” [31 Stat. at L. 1338, chap. 854.] The objection now made to the jurors Avas well knoAvn to the defendant, and might have been a “ground for challenge” of each juror. About this there can" be no controversy. The question is to be raised by “challenge of a juror,” not by objections to the array, such as were made through the motions filed by the defendant. When we speak of the challenge of a juror we mean challenge for cause or peremptory challenge. This is the usual import of the phrase, and statutes are to be construed according to the “ordinary and natural signification” of the words employed, where possible. Mackell v. District of Columbia, 16 App. D.C. 301; Duehay v. District of Columbia, 25 App. D. C. 434. The Supreme Court of the United States dealt with this section in Johnson v. United States, 225 U. S. 405, 420, 56 L. ed. 1142, 1147, 32 Sup. Ct. Rep. 748, and sustained and applied it. The court in
The next ground upon which a new trial is awarded is the refusal of the court at the close of the government’s testimony to require the prosecution to specify the two offenses upon which it would ask a conviction. In the light of the facts disclosed by the record, there was, I think, no prejudicial error in this. Before any testimony was introduced, the government announced that the offense charged in the first count was committed between February 23 and March 15, and the one laid in the second count, between March 15 and April 10. At the close of the government’s testimony it appeared that one of the offenses under the first count occurred in a certain hotel and all others in a named apartment hoiise; and that the offenses relating to the second count were committed in another apartment house between March 15 and April 10. This fixed the time and place of each crime with comparative definiteness, yet perhaps not sufficiently so if the quantum of evidence offered by the defendant with respect to certain of the offenses was different from that produced as to others. Then it might bo said with force that it was unfair to permit the government to postpone its election until it could select the crimes against which the weakest defense was made. But nothing of that kind could occur here, because the weight of the defense was the same as to each charge. Outside of testimony bearing upon the character of witnesses for the government, defendant produced none save his own, and that was a denial of all the offenses alleged. The government gained no advantage, nor did tho defendant suffer any prejudice by the court’s action.
Before the arguments to the jury commenced, the government specifically pointed out the two offenses for which it would claim a conviction. Defendant urges that this did not give his counsel sufficient time to prepare for the presentation of his case to the jury; but his counsel did not seem to think so at the time, for he made no application to the court for a postponement of the argument.
Defendant filed a motion for a new trial in which he assigned ten errors. He made no specific reference therein to either of the grounds upon which this court grants him a new trial, nor did it embody any assignment sufficiently definite under which to raise either question. Lincoln v. Sun Vapor Street Light Co. 8 C. C. A. 253, 19 U. S. App. 431, 59 Fed. 756; Oswego Twp. v. Travelers’ Ins. Co. 17 C. C. A. 77, 36 U. S. App. 13, 70 Fed. 225; Sovereign Camp, W. W. v. Jackson, 38 C. C. A. 208, 97 Fed. 382. 388. It appears, then, that he did not seriously believe in the lower court that the jury was unfair, or that he had been injured by the court’s failure to require an earlier oled ion. This suggests the thought that those contentions are now made, as was said in Johnson v. United States, supra, as a “makeweight.”
I think that sec. 874 of the District Code [31 Stat. at L. 3 332, chap. 854], and not sec. 316 of the Federal Code [35 Stat. at L, 1149] chap. 321, Comp. Stat. 1916, sec. 10,489], provides the punishment that should be inflicted for the crime of adultery, but I do not think that the question is ruled by the decision in Johnson v. United States, 38 App. D. C. 347; 225 U. S. 405, 56 L. ed. 1142, 32 Sup. Ct. Rep. 748. That case arose under chapter 11 of the Federal Code, wherein the language restricting the operation of the chapter is quite different, as the court points out, from that used to limit the operation of chapter 13, under which the defendant was sentenced. But this last-mentioned chapter declares that the crimes mentioned in it, among which is adultery, shall be punished as therein prescribed “except as otherwise expressly provided.”
I have examined all the other assignments of error, and think they should be rejected as unsupported by anything in the record. The jury was lucidly and correctly instructed as to the law of the case, and the defendant had in all respects a fair trial. While the case should be remanded for sentence under sec. 874, a new trial should not he allowed.