United States v. Greene

SPEER, District Judge

(after stating the facts as above). The defense offered at this period of the case by the persons arraigned is a plea in abatement, which is a dilatory plea. It is an attempt to annul an indictment of the grand jury of a United States court, without any regard to the question of the guilt or innocence of the prisoners or of the public interest at stake. Pleas of this character, where it is not made to appear that any unfair prejudice has been *689 done to the accused, are regarded with great disfavor. This is made to appear not only by the controlling act of congress on the subject, but by a long' and unbroken lino of decisions of courts of the highest repute. The act of congress, which is section 1025, Rev. St., provides:

“Xo indictment found and presented by a grand jury in any district or circuit or other court of the United. States shall be deemed insufficient, nor shall the trial, judgment or other proceeding therein be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.”

En the valuable Encyclopaedia of Pleading and Practice (volume I, p. 23) the general rule is stated as follows:

“Pleas in abatement, as they do not deny the merits of the plaintiff’s claim, hut merely tend to delay the remedy, are not favored by the courts, and the greatest strictness is applied to them, and they will not be aided in construction by any intendments. With them correctness of form is matter of substance, and any defect of form is fatal. They must answer the whole case, and contain a full, direct, and positive averment of all material facts.”

In the same volume, on page 44, it is declared:

“Such pleas must be certain to every intent and leave nothing to be drawn by inference. They must anticipate and include all such supposable matter as would, if alleged by the opposite party, defeat the plea.”

It is said that the doctrine thus announced with regard to pleas in abatement is but an application of the harsh rules of the common law, and it is contended in the interesting argument of counsel for the accused that the rules of pleading are much more liberal now than they were at common law. This statement is not without an important qualification. The more liberal methods evolved by the advance in modern jurisprudence have been designed to make effective the trial of a case, whether civil or criminal, upon its merits, that the right may in truth be ascertained, that the innocent may be acquitted or the guilty brought to justice. In the case of U. S. v. Terry (decided in the Northern district of California, by Judge Hoffman, in 1889) 39 Fed. 364 , the learned judge remarks:

“It may, I tliiufe, be justly said that, while the rigorous and apparently harsh, though ancient and well settled, rules of the common law have in some instances been departed from, It has always been in the interest of substantial justice, and to prevent a manifest wrong to the defendant; and conversely where it is plain that substantial justice will not be promoted, nor a manifest wrong to the defendant prevented, the indictment should not be set aside on grounds of technical errors, informalities, or irregularities.”

This deliverance of Judge Hoffman related to a plea in abatement where facts contrary to the record were alleged, and not only did the court hold that a demurrer to such a plea cannot be regarded as admitting the truth of such allegations, but it was held that the plea in abatement was bad so far as it contradicted the record. The learned judge continues:

“Assuming, however, that the plea in the case Is open to exception as a formal plea in abatement, it does not follow that the defendant is without remedy. Thus, for example, where it is alleged that there has been improper conduct on the part of officers employed in the designating, summoning, and returning of the grand jury, the defendant who may have been *690 prejudiced thereby may bring the matter before the court by suggestion or motion or affidavit, even where no right of challenge to the array is allowed by law. But this motion is addressed to the discretion of the court, and the court, having general power to preserve the pure administration of justice, will freely exercise its sound discretion for the purpose of serving that end.”

A more recent decision upon the same subject and by the supreme court of the United States is Agnew’s Case, 165 U. S. 44 , 17 Sup. Ct. 238, 41 L. Ed. 627 . In that case the plea in abatement was filed because of what seemed at first to be an unusual proceeding in the drawing of the grand jury. Under the practice in the district of Florida it seems that the clerk and marshal draw grand jurors from the jury box. The grand jury was incomplete, and, as stated by the chief justice in his opinion:

'The court ordered a special venire to issue for ten grand jurors to be drawn according to law, ‘to be taken from the county of Duval; that the clerk and marshal, in drawing said venire, whenever a name was legally drawn from the box, if said party so drawn was not from the county of Duval, laid aside said name, and continued drawing until ten names from the county of Duval were obtained’; and that, some of the ten returned on the second venire being excused, other names were drawn in the same way, and a third venire was issued, and still another, until the grand jury was completed with grand jurors from Duval county.”

It also appeared from the statement of the chief justice that there were orders of court, certified as part of the record, which directed the drawing according to law from the various counties exclusive of Duval county, and then from that county. This, like the order of the court in this case, excluding jurors from the counties of Chat-ham and Glynn, was done in pursuance of the power given by section 802, Rev. St. Says Chief Justice Fuller, for the court:

“Section 802 of the Revised Statutes was brought forward from a clause of section 29 of the judiciary act of September 24, 1789, which was regarded by Mr. Justice Curtis as applicable to grand as well as petit juries.”

It is interesting, then, to reflect that the statute under which the court in this case selected jurors from counties other than Chatham and Glynn was, in substance, enacted by the first congress of the United States, which assembled after the formation of the constitution, received the approval of. George Washington, and has been in full force and effect for more than no years anterior to the action of the court now under consideration.

The doctrine that for such irregularities as do not prejudice the defendant he has no cause of complaint and can take no exception is expressly reaffirmed in the opinion of Chief Justice Fuller in the case just cited, and the learned chief justice cites in support of his statement a number of authorities from the courts of the states and of the United States. Indeed, the chain of authorities on all of the cardinal principles hereinbefore stated seems to be unbroken, and so clear is this that the efforts and research of counsel in this case have not produced a single decision in which a plea in abatement has been sustained by the United States courts in a criminal case. On the contrary, a multitude of authorities have been cited where such pleas were denied where they did not conform with strict exactness to the requirements of the law, and failed to contain the essential *691 averments of such dilatory pleading. In U. S. v. Williams, decided in the circuit court for Minnesota, and reported in 12 Myers, Fed. Dec. pars. 1826, 1827, Fed. Cas. No. 16,716, Circuit Judge Dillon, sitting with District judge Nelson, declared:

•‘I’loas of this character are dilatory, and, not being favored, th** law rof!Hires that they shall contain all essential averments, pleaded with strict exactness.”

In Ü. S. v. Hammond, 2 Woods, 197 , Fed. Cas. No. 15,294» Circuit Judge Woods held that although, in view of the law at that period of our history, the disqualification of a grand juror was absolute, and did not rest in the discretion of the court, the juror, having been a Confederate soldier, the plea, was bad, because it did not state “when and where the juror took up arms and joined the rebellion and insurrection against the United States.” In the same case this famous circuit judge, afterwards associate justice of the supreme court, expresses with emphasis the disfavor with which such pleas are regarded, and the exactitude with which every requirement in form as well as substance is insisted upon by the courts. On the latter requirement, see 1 Chit. Pl. *479, *583; 1 Chit. Cr. Law, *448; 1 Enc. Pl. & Prac. p. 27, and authorities cited; 1 Archb. Cr. Pl. *32; 1 Bish. Cr. Proc. par. 435; U. S. v. Richardson (C. C.) 28 Fed. 64 . The decision in the last case cited was by Mr. Justice Gray. A very instructive case upon the general topic is U. S. v. Chaires, decided in the Northern district of Florida by Circuit Judge Pardee and District Judge Bwaync, reported in 40 Fed. p. 821. The opinion contains this pertinent language:

“Tiie third plea is to the effect-that tlie names of the persons placed by the jury commissioner and the clerk in the box were not drawn from the entire territory within the Northern district of Florida, but wore drawn from an alleged division of the district. No injustice or prejudice is averred. Section 802, Rev. St., permits jurors to be returned on an order of court from parts of a district. No injury or prejudice can, therefore, be inferred. We think this plea is bad in form and substance.”

In view of principies so clearly announced and so incontrovertibly established by text writers and courts, all of whose conclusions deserve, and some command, obedience, the questions raised by this plea may, we think, be readily determined.

The first ground is that the names of persons placed in the jury box from which the grand jury was taken were not placed therein by II. H. King, clerk of this court, and the jury commissioner, but that, H. H. King being accessible, and in no wise disabled or disqualified, the names were placed in the box by the jury commissioner and a deputy clerk by the handfuls or bunches, and that they should be placed therein alternately by the said clerk and by the said commissioner, and that this tended to tlie injury and prejudice of these defendants. In passing upon this plea the court will take judicial notice of its own record relative to the duty which it is said the clerk failed to perform. On January 26, 1897, the following order was made: 1

“In the District Court of the United States for the Eastern Division of the Southern District of Georgia. In re Revision of the Jury List. It appearing to the court that there is a necessity for a revision of the jury of *692 this court, it is upon consideration ordered that Edward S. Elliott be, and he is hereby, appointed jury commissioner of this court for the Eastern division of the Southern district of Georgia; and it is ordered that the said Edward S. Elliott and H. H. King, clerk of this court, conformably to law, shall proceed as soon as may be to revise the jury list of said court, and for the purpose of convenience and economy in serving said jurors it is ordered that the jurors be selected from the counties of Chatham, Bryan, Liberty, Ware, Glynn, Wayne, Pierce, Clinch, Lowndes, Brooks, Thomas, Decatur, Effingham, and Bulloch.”

This order is on the minutes, and is also found attached to the jury list or jury book, as it is indifferently called, which is also of file. Thus, by order, a distinct duty was placed upon the clerk to act with the jury commissioner. The order attached to the jury list which is found of file in the clerk’s office sufficiently identifies such list. It is not averred that the names in the jury box did not conform to the names on the jury list or book referred to. It is averred that a deputy clerk placed these names in the jury box. This would not, in my judgment, have been a violation of law, and assuredly would not have disqualified the jurors whose names were placed in the box, provided the clerk was present, took part in the selection of the names, and supervised the manual act of placing the tickets in the box. Whart. Cr. Law, p. 171. While the statute on this subject is apparently mandatory, and while, in my opinion, there is a personal trust imposed by the act of congress upon the individual who is the clerk, yet, in the absence of any charge of bad faith or corrupt motive in the selection of a jury, or other conduct prejudicial to the defendant, if he fails to comply with literal strictness to the provision of the statute, yet does substantially comply, his action will not be regarded as vicious and unlawful. This is especially true where no juror selected is alleged to be disqualified, and no intimation of political or other bias is ascribed to a person or the persons whose names are placed in the box. In the case of U. S. v. Ambrose, 3 Fed. 286 , — decision by the circuit court Southern district of Ohio, Circuit Judge Swayne presiding, — the learned judge declared with regard to the manner in which the names of persons shall be placed in the jury box:

“Upon full consideration of tbe subject I feel bound to hold that this provision of this act of congress was not directory, as X was inclined to think at first; and I think no sound view of the subject will warrant any other conclusion than that that provision is mandatory, and I think it is the duty of every court of the United States to regard it and carry it out; * * * but, on the other hand, * * * that all that is required is an honest intention to conform to the statute, and to carry out its provisions in good faith. Beyond that I think the statute has no efficacy." Beyond that I think it may be held to be merely directory. I think that any irregularity arising from motives other than those of an evil character — any slight irregularity, such as may arise in any case in spite of the greatest care, and caution — is not fatal to the indictment.”

Upon the same topic it is stated in 12 Enc. Pl. & Prac. p. 277, that:

“The great weight of authority is to the effect that the mere fact that officers intrusted with the several duties prescribed failed to conform precisely to such requirements will not invalidate their action, unless it appears, or may be reasonably inferred from the circumstances, that the complaining party has been prejudiced, or that injury has been sustained by reason of neglect or omissions charged.”

*693 In support of this statement of the rule by the Encyclopaedia from the supreme appellate courts of 21 states of the Union a large number of authorities are cited. Indeed, the necessity oí showing prejudice to invalidate a criminal proceeding is a distinctive feature of the laws both of the state and of the United States. In Doyle v. U. S. (C. C.) 10 Fed. 269 , it was held that the irregularity, even, of a judge communicating privately with one of the jurors while they are deliberating on their verdict, furnishes no sufficient ground for reversal, where, it is not claimed that it worked of necessity a prejudice to the accused. In the absence of any sufficient showing to the contrary, fixe presumption is that the jury was selected and drawn according to law. Kie v. U. S. (C. C.) 27 Fed. 351 . In the absence of any sufficient showing to the contrary, it is presumed that the clerk did his duty as jury commissioner, and that the other jury commissioner performed his duty also. This is an ancient principle of law, as old as Coke upon Littleton. “Omnia pnesumuntur rite et solcmniter esse acta.” Broom, Leg. Max. Justice Story, in the case of Bank v. Dandridge, 12 Wheat. 68 , 6 L. Ed. 554 , declares that the law “presumes that every man in his private and official character does his duty, until the contrary is proved. It will presume that all things are rightly done unless the circumstances of the case overturn this presumption.”

Starting, therefore, with the presumption in favor of the regularity of the jury and of the proper performance of duty on the part of the clerk, what is there alleged in this plea to avoid that presumption? Merely this: That Mr. King, the clerk, did not place the names of the jurors in 1he box, but that they were placed in the box by the jury commissioner and a deputy clerk. The name of the deputy clerk is not mentioned in the plea. It is not alleged that this action of file, deputy clerk was not done in the nresence of the clerk, nor is it alleged that the deputy was of. the same political party with the jury commissioner, or that any bad or evil purpose moved either one of these parlies, or that any incompetent or partial juror was select ed. Yet this plea must be certain to every intent, and leave nothing to be drawn by inference. It must anticipate and include all .such supposable matter as would, if alleged by the opposite party, defeat the plea. 1 Enc. Pl. & Prac. p. 24, and authorities cited. It is therefore entirely compatible with this plea that every judicial and discretionary function on the part of the clerk as a jury commissioner, all of which is necessarily included in the power to “place in the box,” was done, and the plea, while literally true as far as it goes, is bad. It does not negative the presumptions I have mentioned, nor is it averred with that strictness as to essentials under the rules stated which will defeat the solemn indictment of a grand jury. Nor does it matter if the names of the jurors were bunched before they were put in the box, if they were lawfully chosen by the jury commissioners of opposing political faiths, and this it is presumed was done.

The second ground or plea is that the jury box was not kept, as required by law, continuously in the custody of the clerk; that during the month of November, 1899, it was delivered by him, or some *694 one connected with his office, and without authority of law, into the hands of strangers, which gave opportunity to outsiders to violate the sanctity of said jury box. This is wholly uncertain, and is, besides, contradictory of the well-known proceedings in this case, which are in the knowledge of the presiding judge, and of which he must take judicial notice. It has been the uniform and invariable practice of the judge to lock the jury boxes after drawing a jury, and to seal the same with wax, imprinting his personal seal, and deliver the keys to the marshal and the box to the clerk. Whenever it has been necessary at the official residence of the judge to draw a jury for another division of the district, suitable order is issued to the clerk to transmit the jury boxes by a reliable express company. No safer method of transmission is obtainable. They are received by the officials of the court, receipted for to the express company with the unbroken seal of the court thereon. That was true in the instance referred to in this plea. It is impossible, therefore, that any person could have tampered with the jury box from which these jurors were drawn.

The contention in the third plea, that the grand jurv was not publicly drawn, is likewise known to the court to be untrue. This grand jury was publicly drawn in the United States court house in Macon, Ga., in the presence of all the officers who were by law required to be present; and of this fact the court takes judicial notice. It is, indeed, alleged in the fourth ground of the plea that the jurors were drawn in the city of Macon in a court house other than that of the Eastern division. It is said in this plea that no venire facias was issued by the clerk of this court, nor any filed in the clerk’s office of the said Eastern division, until after the persons whose names were drawn had been summoned. It does not deny — what the court judicially knows to be true — that a venire facias was issued by the deputy clerk of this court, who has his residence at Macon. It is alleged that instructions had been given by “those in authority” that the marshal and his deputies serving said summons should keep secret the names of such persons so drawn, and should enjoin on each person so summoned the necessity of keeping secret the fact that he had been summoned to serve as a grand juror at said term; but who were “those in authority” who gave such instruction is not alleged, and, since no such instructions were issued by the court, it is wholly unimportant and irrelevant to the validity of the grand jury. Nor were such instructions, if given, in any sense prejudicial to the rights of the defendants.

The fifth ground or plea is that the indictment should be quashed because there were not, as required by .law, 300 names of qualified jurors in the box, but in fact that there were less than 200 names of qualified jurors therein, on November 22, 1899. This is also contradictory of the record. There were in the district court jury box at the time of the drawing, as appears by the jury list, 562 names, and in the circuit court box there were 578 names. The order of the court required that the jury should be drawn from the “jury boxes” of the district, and under the act of congress, which authorizes the use interchangeably of district and circuit court jurors when both *695 courts are in session, although this particular grand jury was drawn from the district court box, all of the names in both boxes may be regarded as the jury body from whom the grand jury was selected. It is said, however, that because the court, by its order, upon representations made by the district attorney, directed a jury to be drawn from certain counties of the district exclusive of Chatham and Glynn, this disqualified the jurors from those counties, and that their names are to be regarded as taken from the jury box to the injury and prejudice of the defendants, iri that there remained less than 300 names in the district court box. The fací, however, that for a particular emergency the court, in the exercise of the power vested .in it by section 802, Rev. St., thought proper to draw jurors from particular counties, does not disqualify other jurors, whose names are in the box, who are from other counties. Their names are none the less in the jury box, and must none the less be counted. They are merely not among those jurors from whom ihe grand jury in a. particular ease is to be selected. But, even if the order of the court had the effect to disqualify and destroy the juror-acting capacity of jurors from Chatham and Glynn, this could not be prejudicial to the accused. All that they have the right to demand is a grand jury of which every member shall possess the legal qualifications of a juror, and unquestionably such a grand jury could be and was selected from the names remaining in the box after jurors from Chatham and Glynn were eliminated. The requirement as to the number of jurors fixed by the statute is merely to facilitate the convenient selection of an impartial jury. Nor is the court restricted to the use of the jury box designated and provided for by the statute, as, in its discretion, it may hold a stated term of its court in any locality in the 'district, so, in its discretion, it may draw a jury from the jury box of a state court in any county within its jurisdiction. It would have been competent, therefore, for the court in this case to have drawn this grand jury from the jury box of the state court, to which none of these statutory provisions applied, and might even now, if it thinks proper, order this case to trial at Valdosta, or Thomasville, or any other point in this division of the district, and before a jury not one of whose names may appear on the circuit or district court jury lists of this court.

It is, however, insisted in another ground or plea that jurors from Chatham and Glynn were peculiarly qualified to act in this case because of their familiarity with river and harbor improvements, and it was said, in substance, in argument,- — no doubt humorously,- — that the jurors who were summoned from the interior counties were so unfamiliar with such matters that they would be startled, and their minds frighted from their propriety, by the bare mention of such sums as it is alleged were fraudulently obtained from the government by the alleged transactions described in the indictment. Such considerations, if justifiable, even, have no weight when contrasted with the motive of the court to obtain a grand jury entirely impartial for the investigation of the tremendous averments of fraud and peculation set forth in this indictment. It was represented to the court by the district attorney that ex-Captain Oberlin M. Carter, charged as *696 a co-conspirator here, had been tried by court-martial in this county with regard to criminal charges relating to enormous expenditure of government funds in this and in Glynn county. Multitudes of people here heard the testimony delivered on oath; newspapers published in the communities gave graphic accounts of the trial, which itself, conducted with all of the paraphernalia and impressiveness of a military court-martial, liad produced a profound effect upon the public mind. Men had taken sides. In view of these facts, partly ¡Drought to the attention of the court by the district attorney and partly within the knowledge of the presiding judge, it was determined to choose from that great body of merchants, bankers, manufacturers, and farmers from a number of the law-respecting interior counties of the district a high-minded jury which had neither formed nor expressed an opinion, who were without bias or prejudice, who were perfectly impartial, who would, in the language of their oath, “diligently inquire and true presentment make” as 'to these momentous issues now before the court. That the court had the right to draw the jury in Macon in open court, although the court was in vacation here, we have no doubt. The jury was drawn there as a matter of course, as has been the practice of the court, whenever necessary, for many years, and no prejudice to the defendants, or either of them, resulted therefrom.

After exhausti ve argument by the eminent counsel and careful consideration by the court, I am finally convinced that the pleas are each and all bad. There is pleading defective in substance and in form. This I avoid to discuss further. The pleas set up no violation of any substantial right of these defendants. They do not allege or intimate that there was any unfairness on the part of anybody. They do not specify as an incompetent juror a single man on the grand jury who found this true bill as one not in a position to do them full justice, and who was not in all respects such a man as a grand juror of this court ought to have been. To quash this indictment, in view of the character of this pleading and the character of the indictment against the parties accused, * would be, to my mind, abhorrent to the principles of public justice. But, if these pleas were all good in form and substance, they have been waived by these defendants, who, by unnecessarily resisting the processes of the court, and resorting to dilatory expedients of one sort and another, have delayed trial for more than two years, and who> not only refusing to come before the court as they ought to have done, but by exhausting every expedient to prevent the government from bringing them here, now come two years after the indictment was filed, and seek to have it denounced upon technical averments contradicted by the record and the law, but which, if true, would be in no sense prejudicial to them. Said Dr. Wharton, in his well-known work on Criminal Pleading and Practice (paragraph 344), with regard to pleas in abatement to indictments:

“The defendant must take the first opportunity in his power to make the objection. Where he is notified that his ease is to be brought before the grand jury, he should proceed at once to take exception to its competency, for, if he lies by until a bill is found, the exception may be too late. But, *697 ■where he has had no opportunity of objecting before bill found, .then he may take advantage of the objection by motion to quash or by plea in abatement; the latter, in all cases of contested fact, being the proper remedy.”

This language is quoted with approval by the supreme court of the United States in a case where the venire issued November iSifa, the court opened December 3d, the indictment was returned December 12th, the plea 'in abatement was filed December 17th, five days later; and that great court held that it was too late. How obvious it is that aftqr two years the defendants are estopped. Subsequently to the decision in the Agnew Case, as late as April 10, 1900, the circuit court of appeals of this (the Fifth) circuit, quoting from the Agnew Case, and reiterating its principle, held that a plea in abatement filed two months after the indictment was too late. These authorities will suffice, but there are many others to the same effect. It is idle to contend that the accused can avoid the legal effect of their conduct on this plea because they were advised by their counsel that they could not be removed here for trial. It is equally futile to contend because they were under bond to appear before the district judge in New York. All the judicial tribunals from the commissioner in New York to the supreme court in Washington have finally adjudicated that the law commanded and compelled their appearance to answer this indictment. To excuse their failure to plead because of their abortive efforts to resist the process of the court would give them an advantage of their own wrong, for in the long interval between the filing of the indictment and the filing of this plea the bar of the statute may have intervened. Any advice to resist the process of this court given by their own counsel in New York is therefore wholly immaterial. And the bond given to the judge in New York had the purpose to make sure not that they should stay there, but that they should come here. If, at any time, they had surrendered to the marshal of this district, or appeared in court, eo instante they and their sureties would, by operation of law, have been exonerated from the obligation of that bond. The long delay in filing this plea is thus clearly seen to be due to their voluntary action, and they cannot now be heard to attack the indictment by this plea, as they might have done had they promptly respected the law, and made their appearance in obedience to its mandate.

For these reasons judgment will be entered overruling the pleas and ordering the defendants to respond to the indictment.