United States v. Woodruff

28 F. Cas. 761 | U.S. Circuit Court for the District of Illinois | 1846

MeLEAN, Circuit Justice.

Mr. Butterfield appeared for the defendant, and the cause being called, objected to a trial, on the ground that the jurors had not been summoned conformably to the act of congress of the 20th of July, 1840 (5 Stat 304]. That act required the jurors to be selected as jurors were selected under the state laws. By an aarly rule of this' court, the “clerk is required to issue a venire facias, commanding the marshal to summon twenty-four persons to serve as traverse jurors.” By the act of September 24, 1789, § 29 [l.Stat. 88J, it was provided, “that jurors in all cases to serve in the courts of the United States, shall be designated by lot or otherwise in each state respectively, according to the mode of forming juries therein now practiced, so far as the laws of the same shall render such design practicable by the courts or marshals the United States,” etc. As that law applied only to states then organized, other laws have been passed as applicable to the states subsequently admitted. That was the object of the act of 1840. By the act of Illinois, of the 3d of March, 1843, for the selection of jurors, it is made the duty of the county commissioners to select the jurors. Now, this court can not call upon any officers of the state to perform this duty, but we are bound to conform as nearly as may be to the state practice. The ’ venire under the above rules, leaves the selections of jurors to the marshal, as his convenience shall pei> mit. This does not, therefore, conform to the state practice. The jurisdiction of this court extends throughout the state, consequently the jurors should be selected from the state at large, and their names should be inserted in the venire. The court will, therefore, adopt a rule requiring the clerk and marshal to select the jurors from the state at large, previous to each term, and to conform in doing so, as near to the state practice as may be practicable. As the defendant is entitled to a jury selected under the laws of congress, which, as far as may be, adopts the laws of the state, we think, for the reasons stated, he is entitled to a continuance of the cause.