New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-04-05
C0URT RnConD.
TUESDAY, APRIL 4, 1876.
United states Cireult Court.

Judge.
The United States w. Samuel w. Ham
mond and others-Heard on demurrer to
special plea. Tho defendants pleaded
them that two of the grand jurors manning
them), by whom the Indictment was found
were disqualified to act a. such, because
without duress or coercion they had taken
up arms and joined the insurrectiOn and
rebellion against the United States, and
adhered to the said insurrection and rebel
lion, giving it aid and comfort prior to the
present term of this court:
To this plea the United States attorney
demurred, and insisted that the plea was
bad in substance and in form.
The plea is baeed on section 800 Of the
Revised Statutes. This section declares that
''the following shall be cause of disqualif-
cation and challenge of grand and petty
jurors in the courts OF the United States, in
addition to the causes existing by virtue OF
section 81, namely: Without duress and
coercion to have taken up arms, or to have
joined any insurrection against the United
States; to have adhered to any instruction
giving it aid and comfort" etc.
This is an absolute disqualification i'm
posed BY statute. That such disqualiica-
| ton of single grand juror vitiates the in
| dictment was the doc rine of the common
law.
"If any one Of the grand jury who find
an Indictment be within any one of the OK
ceptions of the statute, he vjtiates the
| whole, though never 30 many unexception-
| able persons joined with him in finding il"
| T. Hawkins Pleas of the Gro WI, book 2,
chap. %, sec. %. See, also, Bacon's
Abridgement, 726, 727, title Juries; A.
| Whart0n's Criminal Law, ITO second edi-
tien); Chitty's Criminal Law, 3O9; United
States VS.. Blodgett. IS Ga. 1886 lper Err.
/ ind 2foto
Va. Wilson, Mclean, 6Ol; United States
vs.. Williams, Dillon. 4S5; United States
We. Collins, Woods, 52l.
Such also has been the doctrine of most
of the State courts Of America. See Doyle
VS.. State, II Ohio, 222;; State VS.. Middleton.
5 Porter, 4S4; Commonwealth VS.. Parker,
Pick, $50; Barney vs. State, IL Smedes &
M, IS; Van Hook vs.. State, II Texas, 252;;
Commonwealth Va. St. Clair, | Graf. $50;
Duncan, Yerg. (Tenn,), 27l; State VS..
Rockafellow, Halst., 332; State VS.. Lyon.
Z Port. (Ala.), ICY; Wilbur vs.. State, 81
Ark, 1893; State Va. Cole, II Wis, GA: Kilr0t
vs.. State, 8 Flor, 9; Waiter VS.. State, 4
Blackford, 81 State vs.. Symonds, So Maine;
State vs. Martin, 9 Iredell.
When the courts have held that the OBJ
lection to good juror must be taken before
| Indictment, the ground Of exception has
usually been to the juror and not Q statu-
tory disqualification. United States We.
| White. Crauch. G.. c., 457; The People VS..
Jewett, 3 Wend 3l4.
As the federal courts in questions of
| criminal jurisprudence not regulated by
statute must be governed by the COM
mon law, and as the rule at common
| law, as stated by Hawkins, supra, seems to
| the defendants under consideration is good
| in substance.
1t is next objected to this plea that it
comes too late; that the grand jurors sub
| iect to the disqualification should have
been challenged ut the time the grand jury
| was impaneled. This objection is clearly
untenable. 1t does not appear that the
| accused ever had an opportunity to present
a challenge. Ga the contrary, the court
knows, from its own records, that the
accused were not under arrest or recog-
nizance when the grand jury was im-
| paneled. The first charge OF otfense against
the criminal laws of the United States COM
mitted by them were made in the indict-
ment to which they have pleaded. They
were not supposed 10 have known wha.
was going on in tho grand jury room
On the contrary, the grand jury was
sworn to secrecy in order that they
to object to the qualifications of any
members OF the grand jury who have
been called upon to plead to the indict
ment, if they have the right to object at all
| it seems clear they have not lost it by fail
ure to exercise 1t at earlier time, for they
have objected at the very first opportunity
That disqualification enacted by statute
may be pleaded in abatement if done
| reasonably, has been held in the following
cases: United States VS.. Blodgett, IS GeOr
gia. subpoena; Doyle Va. State, II Ohio, 222
| United States VS.. Wilson, 6 Mclean, GOA
Commonwealth VS.. Parker, 2 PICK, $50
Barney Va. State, IL SIN. e. M. GO; Hardin
vs.. State, % Indiana. 347; Wllouru VS.
State, 81 Arkansas, 1873; State vs.. Cole, Ii
Wisconsin, GA; Kilrot VS.. State, 9 Florids
9; Stanley Vs. State, 16 Texas, 557; State We
Halst., 80; People VS.. Jewett, Wed. 3l4
And it waA the same as common law
Hendricks Pleas of the Crown, book
chapter 25, sections l6 and %; Bacon,
Abridgement, 726, 727; Title Juries, A
Chitty's Criminal Law, 309.
It.is next objected that the disqualified
ton mentioned in section $40, Revised
Statutes, is one which it rests within the
discretion Of the court and Of the prose
cutting officer Of the government to insist on
and that the accused have no right to chal
leDge for such cause.
The theory on which this objection ii
founded is based On section S2l, Revised
Statutes, which declares that at every tern
of any court of the United States, the dis
trict attorney, or other person acting OF
behalf of the United States in said court
may have, and the court, in their discre
ton, may require the clerk to tender t,
every person summoned to serve as a Crane
CT petty juror or veniresman or talesman IL
said court the following oath or affirma
ton, namely. Then follows the form o
an oath to the effect that the official has no
without duress or cOnstraint taken up arm
or joined any insure ction or rebellion
against the United States, and the section
concludes as follows: ''And every person
declining to take said cath shall be dis
charged by the court from serving on thu
grand or petty jury, or venire to which b
may have been summoned"
It seems to me very clear that this section
does not affect the positive enactment O
the preceding section, which declares tina
engaging voluntarily in instruction OR re
belli0n against the United States shall be
cause OF disqualification and challenge.
Without the oath prescribed by section
S2l, juror might be sworn on his cor dire
and if found subject to the disqualification!
prescribed by section 500. he could be chal
lenged.
Section 821 seems designed to provide I
method by which, IN advance, the court ii
it's discretion might purge the venire TO
both grand and petty Jurors of any person
who could not take the oath therein pre-
scented. To hold, however, that the RICH
of any person interested to challenge CRANE
or petty Juror disqualified under section 81
is left discretionary with the United State
attorney and the court, is to hold out tina
section altogether. There stands its positive
enactment that any and every insurrectiOl
or rebellion against the United States shall
be cause OF DISC ratification and challenge
grand and petty jurors. This provision re
serves to the benefit of all parties In a!