128 F.2d 912 | 5th Cir. | 1942
Appellant was convicted on 3 counts of an indictment charging him and one Morris, in five counts, two charging appellant, and two charging Morris, separately with the substantive offenses of endeavoring,
The points against the grand jury were made by plea in abatement. They were, (1) that Dalton, the jury commissioner who drew the grand jury, was not, as required by statute, a duly appointed jury commissioner, and (2) that the Western District of Louisiana having no city of more than 300,000, only one grand jury at a time may be convened in it, and a grand jury drawn for the entire Western District of Louisiana, convened in the Shreveport Division on February 24, 1941, not having been discharged, the court was without power, on April 11, 1941, to call the grand jury, which returned this indictment, to convene at Lake Charles on April 28, 1941.
The points made against the sufficiency of the indictment are (1) that the counts of the indictment on which he was convicted, without setting out any specific acts, charge the offense merely in the general terms of the statute; (2) the conspiracy count is attacked, as confused and ambiguous, in that it in effect charges separate conspiracies; and is bad for duplicity.
The attack on the indictment for mis-joinder and on the ruling denying appellant’s motion to require an election, is based on the fact that Counts 1 and 2 charge this defendant alone, and Counts 3 and 4 -charge Morris alone, with corruptly endeavoring to influence and impede the due administration of justice.
The United States, pointing to the uniform course of decision
The plea in abatement was decided below and the correctness of the ruling must be determined here upon a stipulation of fact.
Its other point that in a district composed of divisions as this district is, there may be only one grand jury summoned to inquire into offenses for the entire district, that, in short, a grand jury cannot be validly summoned in the Lake Charles Division until prior grand juries summoned for other divisions have been discharged, is no better taken. Here again appellant, attacking as illegal a practice so general over the United States that we take judicial knowledge of it, ought to come prepared to point to some statute or decision striking it down. But relying entirely upon the provisions of Section 421, Title 28, U.S.C.A., as amended April 17, 1940, “no grand jury shall be summoned to attend any district court unless the judge thereof, in his own discretion or upon a notification by the district attorney that such jury will be needed, orders a venire to issue therefor.”, he cites no decision' giving that provision the construction he claims for it, or otherwise limiting grand juries in a five division district, to one grand jury for the whole of it. It will be noted that this statute contains no directions as to the constitution and organization of a grand jury and that while it prohibits the summoning of a grand jury for a district court, unless the judge orders it, it does not place any limitation on the number of district courts that may be held at the same time in any district. On the contrary, by the last sentence of the statute, “the district court may in term order a grand jury to be summoned at such time, and to serve such time as it may direct”, it makes it clear that the power of the district judge to call grand juries is not limited.
In short, the provision on which appellant relies merely negatives the power of others than a district judge, to draw a grand jury, and the statute as a whole, in terms confirms the implications of its first sentence that no one but a judge of a district court can draw a grand jury, and it is for him to say when and for what time grand juries may be drawn.
In Breese v. United States, 4 Cir., 203 F. 824, 828, it was said of the objection, that the court had not issued a formal order directing that writ of venire facias issue. “An order was made and entered of record * * * requiring the clerk and jury commissioner to draw the jurors * * * Section 810, Rev.Stats. * * * reads: ‘No grand jury shall be summoned * * * unless * * * the judge * * *
Appellant’s points against the indictment and the refusal of his motion for severance and to elect, hardly, we think, present matters for serious consideration. If we assume that the complaint, that because couched in the general language of the statute the substantive counts were insufficient, was well taken,
HOLMES, Circuit Judge, concurs in the result.
Agnew v. United States, 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624; Hill v. United States, 8 Cir., 15 F.2d 14; Wolfson v. United States, 5 Cir., 101 F. 430; Borgia v. United States, 9 Cir., 78 F.2d 550; Brookman v. United States, 8 Cir., 8 F.2d 803.
“In this cause it is stipulated and agreed by and between the United States Attorney and counsel for defendant that Adolph Jacobs was duly appointed Jury Commissioner in October, 1924, by Honorable Ben. O. Dawkins, Judge of this Court.
“That the said Jacobs is still serving in this capacity, and that the other four Commissioners for the Western District of Louisiana were appointed at various dates later, and the said Dalton, who was the ’Commissioner drawing the jury in Lake Charles in April, 1941, was appointed Commissioner by the Honorable Ben C. Dawkins, Judge of this District in April, 1932.
“That on November 22nd, 1940, an order was issued by this Honorable Court calling and convening a Grand Jury for the entire Western District of Louisiana to be held at Lake Charles on December 16th, 1940.
“That on February 7th, 1941, an order was issued convening a Grand Jury for the entire Western District of Louisiana to be held at Shreveport on February 24th, 1941.
“That on April 11th, 1941, an order was issued by this Honorable Court calling and convening a Grand Jury to be held at Lake Charles on April 28th, 1941.
“That on May 26th, 1941, an order was issued recalling the Grand Jury previously drawn in order of date, February 7th, 1941, to be held for the entire Western District of Louisiana at Shreveport, Louisiana, on June 10th, 1941.
“That in each ease the Grand Juries were adjourned subject to call.
“That the names placed in the Jury Box at Lake Charles and from which the Jury was drawn at Lake Charles on April 16th, 1941, and on December 20th, 1940, were placed therein by a Deputy Clerk and the said Dalton, acting as Commissioner.”
What is said in Re Mills, 135 U.S. 263, 267, 10 S.Ct. 762, 763, 34 L.Ed. 107, in denying the authority of a United States court established in the Indian territory to draw a grand jury, “Now, it is significant that the act establishing a United States court in the Indian Territory makes no provision for a grand jury, although it does provide for petit juries in civil and criminal cases. A grand jury, by which presentments or -indictments may be made for offenses against the United States is a creature of statute. It cannot be impaneled by a court of the United States by virtue simply of its organization as a judicial tribunal. The provisions of the Revised Statutes relating to the impaneling of grand juries for the district and circuit courts (Title 13, c. 15 [28 U.S.O.A. § 411 et seqj) do not apply to the court established in the Indian Territory by the act of March 1, 1889; for, although the latter is a court of the United States, it is not a district or circuit court of the United States. Reynolds v. United States, 98 U.S. 145, 154 [25 L.Ed. 244]; Ex parte Farley (Ex parte Wilson) [C. C.], 40 F. 66,” is not contrary to, it is in confirmation of this view. For the ground of the decision was that the territorial court was not a district or circuit court of the United States and therefore did not have the power they had to impanel grand juries.
28 U.S.C.A. § 421.
Though the modern authorities seem contra, United States v. Polakoff, 2 Cir., 112 F.2d 888, 134 A.L.R. 607.
Sinclair v. United States, 279 U.S. 263, 268, 49 S.Ct. 268, 73 D.Ed. 692; Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173; Coupe v. United States, 72 App.D.C. 86, 113 F.2d 145.
Pankratz Lbr. Co. v. United States, 9 Cir., 50 F.2d 174; United States v. Smith, 2 Cir., 112 F.2d 83; Ginsberg v. United States, 5 Cir., 96 F.2d 433.