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made that any of the grand jurors who found the indictment were disqualified to serve, or were in any respect improper persons. It is only complained that the court excluded some persons for an improper cause; that is, because they labored under the disqualification created by the 820th section of the Revised Statutes, which is alleged to be unconstitutional. It is not complained that the jury actually impaneled was not a good one; but that other persons equally good bad a right to be placed on it. These persons do not complain. If their right to serve on the grand jury was improperly infringed, perhaps they might complain of being excluded. That is another matter. Or, perhaps, the defendants, if correct in their assumption that the law is unconstitutional, and that the court was governed by an improper rule in excluding persons under it, might have had the benefit of the error by moving to quash the indictment, or by pleading in abatement. But passing by these proper modes of taking the objection, they waited until they had been tried and convicted on a plea of not guilty, and then moved in arrest of judgment. We think they were too late in raising the objection.
Some importance is attached to the fact that the court followed an unconstitutional law, or one assumed to be such. We do not see that this is in anywise different from the case in which the courtmisconstrues the law. The result is the same: certain persons, under a misconception of the court, are excluded from the grand jury who are qualified to serve on it; but the jury as actually constituted is unexceptional in every other respect. In either case, whether the court is mistaken as to the validity of a law, or as to its interpretation, the objection relates so little to the merits of the case that it ought to be taken in the regular order and due course of proceeding.
There are cases, undoubtedly, which admit of a different consider. ation, and in which the objection to the grand jury may be taken at any time. These are where the whole proceeding of forming the panel is void; as where the jury is not a jury of the court or term in which the indictment is found, or has been selected by persons having no authority whatever to select them; or where they have not been sworn; or where some other fundamental requisite has not been complied with. But there is no complaint of this kind in the present case. The complaint simply relates to the action of the court in excluding particular persons who might properly have served on the jury. We do not think this vitiated all the proceedings so as to render them absolutely null and void. It might have sufficed to quash the indictment if the objection had been timely and properly made. Nothing more.
We think that this conclusion is the result not only of the English but of the better American authorities.
Mr. Wharton, in his section on the "Disqualification of Grand Ju. rors, and how it may be excepted to,” begins by stating the general rule that irregularities in selecting or impaneling the grand jury,
which do not relate to the competency of individual jurors, may usually be objected to by challenge to the array, or motion to quash; and this must be before the general issue. Crim. Pl. & Pr. (8th Ed.) § 344.
He then shows that in some states it has been held that objections to disqualification of individual jurors can only be taken by challenge, and not by motion to quash or by plea; but that in others the motion to quash, as well as the plea, is allowed; the latter rule being more generally followed, and being more in accordance with the English law. He then adds :
* " Ordinarily, after the general issue has been pleaded objections are too late; and when the objection goes to the manner of drawing it should be taken by challenge to the array.
But on principle, in those cases in which the defendant is surprised, and had no opportunity to take exception until after the finding of the bill, he should be allowed to take advantage of any irregularity by plea." Section 350.
We apprehend that the rule last stated is the correct one. But in section 353 it is added that at common law, if the objection appears of record and there be no statutory impediment, a motion in arrest of judgment may be entertained. This last position we do no not think is well sustained. As we have seen, it was by force of the statute of 11 Hen. IV. that objections might be taken after the trial in England; and the American cases referred to by Mr. Wharton do not sustain his observation. In Harden's Case, 2 Rich. 533, the motion in arrest of judgment was based on the ground that the grand jury was not such for the term at which the bill was found, and, of course, the proceedings were coram non judice. In other cases cited in support of the position, the motions were overruled. We think that the doctrine of waiver applies as well to cases where the objection appears of record as where it appears by averments; and that it applies to all cases of objection to the qualifications of jurors and to the mode of impaneling the jury; but does not apply to cases where the proceeding is wholly void by reason of some fundamental defect or vice therein. Brooke, Abr. Indict. 2; Seaborn's Case, 4 Dev. 305; Robinson's Case, 2 Parker, Crim. R. 308. In the case in Brooke, persons not legali homines were on the grand jury, and it was held that the objection ought to be pleaded before pleading to the felony. In Seaborn's Case it was held that, after conviction of murder, it was too late to take advantage of an error in constituting the grand jury, though it appeared in the record. In Robinson's Case, 2 Parker, Crim. R. 235, 308, 311, which was argued by able counsel in the supreme
court of New York before Justices PARKER, WRIGHT, and HARRIS, no to precept for summoning the grand jury had been issued by the district attorney to the sheriff as the law required, though the sheriff summoned them in the usual way. The court held that this omission did not affect the substantial rights of the prisoner, and that the objection could not be raised after trial and conviction. Many authori. ties were referred to in the opinion of the court delivered by Mr. Justice PARKER, and this general statement was then made: “It seems to be well settled in most of the states that an objection to the qualification of grand jurors, or to the mode of summoning or impaneling them, must be made by a motion to quash or by a plea in abatement, before pleading in bar.” The subject is also discussed in Bishop, Crim. Proc. c. 60, where the same general rule is laid down; though with a reservation of some doubt as to cases where the objection appears of record. Sections 887, 888.
Sections 887, 888. As before stated, we think that it is the nature of the objection, rather than the fact of its appearing or not appearing on the record, which should decide whether it ought to be taken by a plea in abatement, or whether it may also be taken by motion in arrest of judgment; though, of course, it cannot be taken by such a motion unless it does appear of record.
Being satisfied that the defendants could not raise the question of the constitutionality of section 820 by motion in arrest of judgment, it is not necessary, as before observed, to express any opinion on that point. It may be proper, however, to call attention to the singular position of that section. It was originally enacted as section 1 of the act passed June 17, 1862, entitled "An act defining different causes of challenge, and prescribing an additional oath for grand and petit jurors in the United States courts." 12 St. 430. At that time (1862) it was no doubt a very proper and necessary law; but after the rehabilitation of the insurgent states, the proclamation of general amnesty, and the adoption of the fourteenth amendment, guarantying equal rights to all citizens of the United States, there would seem to have been no just reason for the continuance of the law, especially as by far the largest portion of white citizens in the states lately in rebellion would be disqualified under it. Accordingly, by the fifth section of the act, commonly called the “Enforcement Act,” passed April 20, 1871, (17 St. 15,) congress, after providing that in prosecutions under that act no person should be a grand or petit juror who should, in the judgment of the court, be in complicity with any combination or conspiracy punishable by the provisions thereof, repeal the said first section of the act of 1862; and the law remained in this state until the adoption of the Revised Statutes. For some unexplained reason the revisors imported the section back again into the Revised Statutes, (as section 820,) although it had not been in force for over two years. It is probable that the fact of its repeal was overlooked by congress when the Revision was adopted, and it is to be hoped that their attention will be called to it.
In conclusion, to the third and fourth questions, certified by the court below, the answer will be in the affirmative; and it is so ordered.
(109 U. S. 63)
POINDEXTER ». GREENHOW, Treasurer, etc.
WHITE 2. GREENHOW. (In Error to the Circuit Court of the United States for the Eastern District of
CARTER V. GREENHOW. (In Error to the Circuit Court of the United States for the Eastern District of
(October 15, 1883.)
PRACTICE-MOTION TO ADVANCE CASE ON CALENDAR-COURT RULES 32 AND 26.
Rule 32 and paragraph 4 of rule 26 of federal court rules, and section 949, Rev.
St., providing for the advancement of certain cases for early hearing in preference to others, held not applicable to the cases at bar. Motion to advance denied.
On Motion to Advance.
WAITE, C. J. These motions are denied. Rule 32 applies only to writs of error and appeals brought to this court under the provisions of section 5 of the act of March 3, 1875; that is to say, to writs of error and appeals from orders of the circuit courts remanding causes which have been removed from a state court, and from orders dismissing suits because they do not really and substantially involve disputes or controversies properly within the jurisdiction of the circuit courts, or because the parties to the suits have been improperly made or joined for the purpose of creating a case cognizable under that act. These are not such cases. That of Poindexter is a writ of error to a state court. In those of White and Carter, begun in a circuit court, the declarations were demurred to because not sufficient in law, and the judgments were in favor of the defendants on the demurrers. The cases as made by the declarations were disposed of on the merits, and the writs of error are for the review of such judgments.
Neither are the parties entitled to a hearing in preference to others under the provisions of section 949 of the Revised Statutes. The state of Virginia is not a party to either of the suits, and the execution of the revenue laws has not been enjoined or stayed. A tax collector has been sued for alleged wrongs done the several plaintiffs while he was engaged in the collection of taxes due the state, but he is not restrained from discharging any of his official duties.
Paragraph 4 of rule 26 relates only to revenue cases and cases in wbich the United States are concerned, which also involve or affect some matter of general public interest. Even these cannot be advanced except in the discretion of the court and on the motion of the attorney general.
The questions involved may be of public importance, but that does not necessarily entitle the parties to a hearing in preference to others. Practically, every case advanced postpones another that has been on the docket three years awaiting its turn in the regular call. Under these circumstances we deem it our duty not to take up a case out of its order except for imperative reasons.
(109 U. S. 63)
UNITED STATES v. HAMILTON.
(October 15, 1883.)
INDICTMENT—MOTION TO QUASA-DECISION UPON, NOT ERROR—DIVISION OF
A motion to quash an indictment being addressed to the discretion of the court, a decision thereon is not subject to review on a writ of error.
The supreme court cannot take cognizance of a division of opinion between the judges of a circuit court on a motion to quash an indictment.
On Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the Middle District of Tennes
Sol. Gen. Phillips, for the United States.
BRADLEY, J. The certificate of division in this case was made on a division in opinion between the judges on a motion to quash the indictment. As a motion to quash is always addressed to the discretion of the court, a decision upon it is not error, and cannot be reviewed on a writ of error. In the case of U. S. v. Rosenburgh, 7 Wall. 580, we decided the precise point, that this court cannot take cognizance of a division of opinion between the judges of a circuit court upon a motion to quash an indictment. This decision was reaffirmed in U. S. v. Avery, 13 Wall. 251, and in U.S. v. Canda, deeided at the last term.
The case not being properly before us, is dismissed.