Seward daily gateway., 1929-06-21
JUDGE DECIDES
 LEGAL. PUNT IN
 FAVOR GOV 'MENT
PRESENT FOREMAN OF GRAND JURY IS A PAID EMPLOYEE
 OF GOVERNMENT

Horace caldwell, charged With a statutory offense, raised the ques- ton by his attorney, L. V. Ray, of whether a deputy United States marshal was qualified to sit as a member of grand jury and as foreman of the grand jury. The Dleadings showed as admitted by the government that the present foreman of the grand jury was paid employee of the United States, m agent of the Department of the Interior, and also holding office as a special deputy, United States marshal for this division.
 Judge E. Coke Hill, presiding federal judge, ruled that the fore man was qualified to sit as mem Der of the grand jury, and has sub mitted for publication the fol- lowing opinion: D
 Tn the District Court of the Ter r,tory of Alaska, Third Division. United States of America, plaintiff.
 $. Horace Caldwell, defendant. Mo- 1181 criminal. Opinion.
 On June IA, 1929, at Seward. AL aska, 2 grand jury summoned in the Third Judicial Division of the Territory of Alaska to inquire into offenSes committed or triable with Tn tha Territory returned an indict- ment against Horace Caldwell charging him with statutory rape.
 On June IT, 1929, the defendant filed plea in abatement of the indictment praying that said in Idictment be quashed for the reason that at all times when the charge against said defendant was being investigated by said grand jury and lat the time of the return of the said indictment, Walter c. Culver, foreman of the grand jury, was dis qualified to serve as a grand juror for the reason that he was an en- Iployee of the United States employ led in the conduct of the Alaska Railroad and charged with the dut- IieS of Investigating and reporting iinfractions of the law relative to employees of the United States en- ployed on said Alaska Railroad: !: and also because the said Culver was an officer and an employee Of the Department of Justice of the United States of America. to wit: a special deputy United States mar I;ihal in, of and for the Third Divi- sion of the Territory of Alaska.
 To this plea in abatement the United States demurred, thus ad- uniting the facts alleged in the plea in abatement. The records show that Culver is special deputy marshal without compensation ap- pointed for convenience in his railroad work.
 The record of this court shows that on June 3rd, 1929, at Seward, Alaska, in open court, Walter c. Culver and other grand jurors summoned to attend the court were exam: ned by the United States at torney as to their qualifications to serve as grand jurors, which ex- aminatjon showed that said Walter G. Culver was not disqualified to act as grand juror under the pro- visions of Section 2120 of the Code of Criminal Procedure of Alaska.
 In support of the defendants po- sitior be presented to the court and relied principally upon the decision Iof the Court of Appeals of District IOf Columbia in The United States Ivs., Griffith, ct al.. 2 Fed. End. 925. In the Griffith case a plea in abatement was interposed because George H. Van Kirk, a member of the grand jury, was paid employe of the United States Tn that case ia replication was filed denying that