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edge of the facts connected with this case, or such a frame of mind generally as to warrant us in holding that the trial court abused its discretion in overruling the challenges for cause. But among the jurors challenged were three whose examinations were as follows:
Phil. Ernst testified:
“I heard the statement of the case. I was one of the jurors in the Ludovic case; I have an opinion at this time as to the guilt or innocence of the defendant-I might say a fixed opinion, such as would require considerable evidence to remove. I believe I could be a fair and impartial juror. I don't know positively whether I could or not. I don't know the man, and have no prejudice against him. I have a prejudice against that business, but I have no knowledge of whether he is guilty or not; I might require less evidence to find a man, charged with setting up and keeping a bawdyhouse, guilty, but I think I would require the government to prove all the allegations of the indictment. I would require the government to prove him guilty by the preponderance of the evidence before I would render a verdict against him. I have an opinion as to the character of the house alleged from its description and locality; proof that the house was in the restricted district would be sufficient to my mind to establish its character. know that a vacant house could have any character. There might be a laundry there. I don't know; but there would have to be evidence to show that to my mind. If the government simply introduced proof that the house is in the restricted district and no more proof were offered, I think I would conclude that it was a bawdyhouse from its locality.
"Mr. Bell: We challenge the juror for actual bias." On cross-examination the juror said:
“I think that the government should prove beyond a reasonable doubt that the house which is alleged in the indictment was used as a house of ill fame or for the purposes of prostitution; but I would not infer that merely from the locality; but if there were no evidence offered as to the character of the house, and it was proved to be in that district, why, then, I would have an opinion as to its character from the district. I don't know this house; I would require the government to prove all the allegations of the indictment beyond a reasonable doubt before I would find the defendant guilty."
Chris Frantzen testified:
"I heard the statement of the case. I don't know the defendant. I have never heard the case discussed in any way. I have an opinion at this time as to the guilt and innocence of the defendant; it is a fixed opinion. I think I could lay it aside if the evidence showed he was not guilty. I was one of the jurors in the Ludovic case. I would try to lay aside my opinion and try the case according to the evidence. I am sure I could do it; but I have an opinion at the present time. I feel at the present time it would require evidence to remove that opinion; as it is, I would have to have some testimony before my mind would be evenly balanced as to the guilt or innocence of the defendant. I would not enter upon the trial of this case as a fair and impartial juror; that opinion which I now have would have some weight in considering the testimony and weighing the testimony that would be introduced, and my mind would be biased upon the testimony in finding a verdict at the present time. I do not feel that I could lay that opinion aside entirely and disregard it as though I never had any opinion whatever.
"Mr. Bell: We submit a challenge for actual as well as implied bias. “Mr. Hoyt: We resist.
"Q. (by Mr. Landers) Upon what is that opinion based ? A. Well, the house is inside the stockade. Q. You have an opinion just as to the character of the house then ? A. Yes.
“(Continuing) I don't know anything about this house. I have a prejudice against the houses back in the stockade. I don't know whether this house is run as a house of prostitution or not. I don't know whether it is run by the de
fendant. I have heard that he has several houses there, inside the stockade. I don't know whether he has or not. I don't know whether this particular house alleged in the indictment is one of them or not. I have an opinion in regard to this particular charge. I would enter into the trial of this case without any opinion whatever in regard to this particular charge of keeping a bawdyhouse within a certain house within that district."
James E. Cahill testified:
"I heard the statement of the case. I have heard the facts about this case. I know who the defendant is by sight. I have an opinion at the present time as to the guilt or innocence of the defendant. It is a decided opinion, which would require evidence to remove. It would require considerable evidence to remove the opinion that I now have, and I do not think I could lay it aside and have no weight in considering the testimony.
“Mr. Murane: We submit a challenge for actual bias. "Mr. Hoyt: Challenge resisted.
"Q. (by Mr. Hoyt) Is your opinion based upon some knowledge which you hare? A. No, just a general impression. Q. An impression, or a prejudice? A. No, an impression. Q. You have no knowledge as to the guilt or innocence under this charge? A. None whatever. *
"(Continuing) That is a strong opinion which I possess and which I will not be able to rid myself of.
“Mr. Hoyt. We do not resist the challenge.
"Q. (by the Court) Would you mix up with the evidence in the case, if you were sworn to try the case, would you mix up any knowledge that you might have with the evidence and base your verdict partly on that? A. Oh, no; I would not allow my prejudice to guide me to a verdict. Q. You do not know the defendant? Have you any prejudice against the United States? A. None whatever. Q. Do you think you could enter the jury box and render a fair, just, and impartial verdict? You would not convict anybody, would you, unless the evidence satisfied your mind beyond a reasonable doubt? A. I think, on the contrary, I would be more lenient after forming an opinion.”
The statutes of Alaska bearing upon the qualifications of jurors are that a challenge for cause exists:
“Sec. 125. * * * Second. For the existence of a state of mind on the part of a juror in reference to the action or to either party which satisfies the trier, in the exercise of a sound discretion, that he can not try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this code as actual bias.
“Sec. 127. Challenge for Actual Bias. That a challenge for actual bias may be taken for the cause mentioned in the second subdivision of section one hundred and twenty-five. But on the trial of such challenge, although it should appear that the juror challenged has formed or expressed an opinion upon the merits of the cause from what he may have heard or read, such opinion shall not of itself be sufficient to sustain the challenge, but the court must be satisfied, from all the circumstances, that the juror can not disregard such opinion and try the issue impartially.”
It is not to be disputed that, unless manifest error has occurred in ruling upon the qualifications of jurors, the action of a trial court should not be disturbed. The position of the trial judge necessarily enables him to try the fitness of a juror to much better advantage than an appellate court can. Thiede v. Utah, 159 U. S. 510, 16 Sup. Ct. 62, 40 L. Ed. 237. It often happens that the very manner in which the answers are given by a juror greatly aids the trial court in judging fairly of the state of the juror's mind. It sometimes occurs that a juror, particularly if he is a man who is unfamiliar with court procedure, or one not well versed in the English language, or one who is uneducated, does not at once fully understand the significance of
the questions put to him by counsel as to any opinions or impressions he may have bearing upon the case. Sometimes it is only by repetition and perhaps after some explanation that the juror appreciates the purpose of the proceeding and slowly discloses the actual state of his mind. Such a juror may be perfectly honest, not trying to keep back anything; he may be anxious to be wholly truthful; yet upon the bare printed record there appear to be inconsistencies or evasions in his answers. We believe generally that in such instances the discretion of the trial court, presumably wisely exercised, should control, and appellate courts ought to refuse to interfere. But, on the other hand, in the interpretation of statutes concerning challenges to jurors for cause, it is of vital importance that the constitutional right to an impartial jury secured to a defendant by the sixth amendment be most carefully guarded, no matter how unimportant the case may be wherein it is seriously urged that this right has been denied. In Williams v. United States, 93 Fed. 396, 25 C. C. A. 369, decided by this court, there was no difference of opinion upon these general principles, but the judges disagreed upon whether or not the action of the trial court presented a case of manifest error, the majority holding it did. In Dolan v. United States, 116 Fed. 518,' this court again considered a ruling by a lower court upon challenges to jurors for cause, and again the judges disagreed, not upon the principle involved, but upon the extent of its application to the particular facts and evidence presented by the record. In neither of the cases, just cited, however, did it appear that the jurors challenged answered as did the two last whose examinations are given above. The examination of Juror Frantzen certainly showed that he went into the trial of the case with a fixed opinion that the defendant was guilty. He frankly stated that he had such an opinion, though he thought he could lay it aside if the evidence showed the defendant was not guilty. The juror would do his best to disregard the opinion, but he felt he could not lay it aside entirely. He had heard that this defendant had several houses inside the stockade where houses of prostitution were, but did not know whether he had or not. It is true that in concluding his testimony he said he would enter upon the trial without any opinion whatever in regard to this particular charge. But in the light of the specific prior statements made by the juror, his own judgment that he would not be a fair juror appears to us to have been the only proper conclusion that was deducible from what he said, and we think he ought to have been excused upon the challenge. Juror Cahill was even more unfit for service. He knew the facts and had an opinion, and felt that he could not lay his opinion aside. He said later that he had no knowledge of the guilt or innocence of defendant under the charge, but he had "an impression,” a “strong opinion,” which he would not be able to rid himself of. The district attorney did not resist the defendant's challenge to this juror, but the court carried the examination farther and elicited from the juror statements that he would not allow his prejudice to guide him to a verdict, that he had no prejudice against the United States (he was not asked if he had any against the defendant), and that he would be more lenient as a juror after
1 54 C. C. A. 34.
forming an opinion, and would not convict unless satisfied of guilt beyond a reasonable doubt.
We find it impossible to avoid the conclusion that a jury made in part of men whose minds are in such a condition is not impartial. It is possible, of course, that such a jury will be perfectly fair; but the standards by which courts must test impartiality are necessarily those derived from common experiences with practical human nature. So if men start out in a case with fixed opinions of guilt, and fear they cannot disregard them, their mental attitudes are well characterized by the language used by Juror Frantzen when he said he thought he could lay his opinion aside “if the evidence showed that the defendant was not guilty.” The burden of proof as to guilt is too apt to be lost sight of before such a jury, and the defendant at the outset, and before a word of evidence is heard, finds himself forced into a trial with the jury strongly against him, and therefore without that full measure of protection which the presumption of innocence should afford him. The question is, therefore, of such a substantial nature that it has received our most earnest consideration in an endeavor to uphold the exercise of the discretionary power of the trial court without infringing upon the constitutional provision which surrounds the exercise of that power, and our conclusion is that there was an abuse of discretion in overruling defendant's challenges, and that because of this error the judgment must be reversed.
If, upon a new trial of the case, the prosecution again offers evidence to show that plaintiff in error was the owner of the property kept and used for purposes of prostitution, as a circumstance tending to rebut this evidence plaintiff in error should be allowed to introduce deeds tending to show legal title in another. Such testimony is proper, although it is not necessary for the government to establish that defendant was the owner of the house, nor is it necessary to show by positive testimony that he was the keeper. It may be found that he was the keeper by his acts and admissions, or by proof that he acted and held himself out as such keeper. If a man leases his house to a woman to be kept as a bawdyhouse for purposes of prostitution, and it is kept for such purposes, with his knowledge, he is guilty as keeper; and by the same principle the agent of an owner who rents a house knowing that it is to be used as a house of prostitution, and that it is so used, may be found guilty as a keeper. 14 Cyc. 489; Kessler v. State, 46 S. E. 408, 119 Ga. 301. We advise, too, that upon a new trial the court should adopt the suggestions as to what constitutes a reasonable doubt made by this court in its opinion remanding the case of Owens v. United States, 130 Fed. 279, 64 C. C. A. 525.
The judgment is reversed, and the cause remanded for a new trial.
HORNSTEIN V. UNITED STATES.
An ordinance prohibiting gambling and prescribing punishment for the same, enacted by a town of Alaska under authority conferred by Act April 28, 1904, c. 1778, 33 Stat. 529, does not deprive the district courts of jurisdiction of a prosecution for gambling within the limits of the town, instituted under the Penal Code of the district, which makes the same a criminal offense.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 176.] In Error to the District Court of the United States for the Second Division of the District of Alaska.
Albert H. Elliot and George D. Schofield, for plaintiff in error. Henry M. Hoyt, U. S. Atty.
Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.
HUNT, District Judge. Charles Hornstein, plaintiff in error, was convicted of the crime of gambling after trial upon information filed in the United States Commissioner's Court for the District of Alaska. To the information Hornstein filed a demurrer and plea in abatement, raising the point that the United States Commissioner had no jurisdiction over an offense committed within the incorporated limits of the town of Nome, District of Alaska, where the alleged crime was committed. The plea in abatement and demurrer were overruled, trial was then had before a jury, and a verdict of guilty was rendered. The plaintiff in error moved for a new trial, which motion was denied, and thereupon he was fined. From the judgment of conviction he sued out a writ of error to this court.
The statute of Alaska under which the information was filed reads as follows:
"That each and every person who shall deal, play, or carry on, open or cause to be opened, or who shall conduct, either as owner, proprietor or employee whether for hire or not, any game of faro, monte, roulette, rouge et noir, lansquenet, rondo, vingt-un, twenty-one, poker, draw poker, bragg, bluff, thaw, craps, or any banking or other device whether the game shall be played for money, checks, credit, or any other representative of value, shall be guilty of a misdemeanor."
Congress passed an act, approved April 28, 1904, 33 Stat. 529, c. 1778, entitled “An act to amend and codify the laws, relating to municipal corporations, in the District of Alaska.” Under this act, the town of Nome, a municipal corporation, passed an ordinance on August 1, 1904, making it a misdemeanor to gamble. This ordinance was in effect at the time of the filing of the information against the plaintiff in error.
The principal contention of the plaintiff in error is that the act to amend and codify the laws relating to municipal corporations in the