No. 1181-Cr | D. Alaska | Jun 18, 1929
On June 14, 1929, at Seward, Alaska, a grand jury summoned in the Third judicial division of the territory of Alaska to inquire into offenses committed or triable within the territory, returned an indictment against Horace Caldwell charging him with statutory rape. On June 17, 1929, the defendant filed a plea in abatement of the indictment, praying that said indictment be quashed for the reason that at all times when the charge against said defendant was being investigated by said grand jury and at the time of the return of the said indictment, Walter G. Culver,
To this plea in abatement the United States demurred, thus admitting the facts alleged in the plea in abatement. Culver is a' special deputy marshal without compensation appointed for convenience in his railroad work.
The record of this court shows that on June 3, 1929, at Seward, Alaska, in open court, Walter G. Culver and other grand jurors summoned to attend the court were examined by the United States attorney as to their qualifications to serve as grand jurors, which examination showed that said Walter G. Culver was not disqualified to act as a grand juror under the provisions of section 2120 of the Code of Criminal Procedure of Alaska (Comp.Laws 1913).
In support of the defendant’s position, he presented to the court and relied principally upon the decision of the Court of Appeals of District of Columbia in United States v. Griffith et al., 55 App.D.C. 123, 2 F.2d 925" court="D.C. Cir." date_filed="1924-12-01" href="https://app.midpage.ai/document/united-states-v-griffith-6639536?utm_source=webapp" opinion_id="6639536">2 F.(2d) 925, 926. In the Griffith Case a plea in abatement was interposed because George H. Van Kirk, a member of the grand jury, was a paid employee of the United States. , In that case a replication was filed denying that Van Kirk was a United States employee, and the court decided that his relationship to the United States “did in effect constitute * * * an employee of the United States within the sense in which that term is here used.” The court then considered the question as to whether “an employee of the government is disqualified under the law to serve as a juror in the District
There is no provision in any of the laws of the territory of Alaska forbidding placing upon the jury lists the names of persons who are exempt from service nor, as to jurors generally, exempting from service all employees of the United States.
The only provisions of the Code of Alaska exempting from liability to act as a grand juror are contained in section 2121, the provisions of which do not extend so far as to include all employees of the United States. The second subdivision of that section exempts any civil officer of the United States whose duties are at the time inconsistent with his attendance as a juror. The seventh subdivision of that section exempts an acting noncommissioned officer, musician, or private of a military organization duly enrolled in the service of the United States or of said district. It does not appear that Walter G. Culver is included in either of these exempt classes.
So far as I am aware, it has always been held by the courts of Alaska that the provisions of section 2121 were for the benefit of the person summoned to serve as a grand juror, and that, if he ,did not claim exemption, he was not disqualified from service.
In the Griffith Case, the court devoted much of its time to showing that the provisions of section 217, supra, were applicable alike to grand and petit jurors, and concluded that they were so applicable.
I am not unmindful of the fact that in the Griffith Case the court discussed and applied the common law of Maryland. I am inclined to think that that part of their opinion was mere dictum. Certainly that discussion was limited to the common law of Maryland.
Since I must hold that there is no statute in Alaska under the provisions of which Walter G. Culver is disqualified from acting as a grand juror, I will consider whether the general provisions of the law forbid his acting in that capacity. The most that can be urged by reason of his employment against his serving as a grand juror is that a party defendant might challenge him for implied bias if he were chosen as a trial juror. Actual bias on the part of a grand juror against a person being investigated by the grand jury has repeatedly been held not to disqualify the grand juror: 12 Ruling Case Law, p. 1022.
In Corpus Juris I find the following: “The general rule has been laid down that interest in a particular prosecution, other than a direct pecuniary interest, will not disqualify a grand juror or be a ground of objection to an indictment in the finding of which he participates. Accordingly, in the absence of statutory provisions to the contrary, the fact ■ that a person has originated a complaint against a person accused of crime or is a witness for the prosecution, does
If actual bias ’does not disqualify a grand juror, I fail to see any reason why implied bias should disqualify him.
In United States v. Belvin (C.C.) 46 F. 381" court="None" date_filed="1891-04-22" href="https://app.midpage.ai/document/united-states-v-belvin-8841781?utm_source=webapp" opinion_id="8841781">46 F. 381, 384, a motion was made to quash the indictment because the foreman of the grand jury had been the examining magistrate who had issued a warrant of arrest for the accused and had expressed an opinion as to his guilt. The court denied the motion, using the following language: “Grand jurors are not sworn on their voir dire to say whether they have formed or expressed an opinion of the guilt or innocence of a person charged with crime. On the contrary, the court charges each of them to bring to the attention of the grand jury all offenses of which he may have any personal knowledge. The grand jury does not try; it merely accuses with a view to trial. The petit jury tries; no other body does or can try the graver offenses. Nor is an examining magistrate or commissioner disqualified to act as a grand juror upon cases sent on by himself.”
It does not appear to me that there is any merit in the objection raised to the qualification of Walter G. Culver to serve upon the grand jury. This court will not indulge in any presumption that, because a man is in th¡e service of the United States, he will violate the oath which he takes as a grand juror, nor will it indulge in any presumption that the United States will exercise pressure upon a member of the grand jury to cause him to indict a person for a crime. The grand jury is an inquisitory body
The demurrer to defendant’s plea in abatement will therefore be sustained, and the plea in abatement overruled.