
    116 F. 569
    HAWKINS v. UNITED STATES.
    No. 771.
    Circuit Court of Appeals, Ninth Circuit.
    June 5, 1902.
    
      John B. Allen and James E. Fenton, for plaintiff in error.
    Joseph K. Wood, U. S. Atty. Second Division, D. Alaska (Marshall B. Woodworth, U. S. Atty. N. D. Cal., of counsel).
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   MORROW, Circuit Judge,

after stating the foregoing facts, delivered the opinion of the court.

The indictment charged the defendant with the crime of robbery. This offense, under the Criminal Code of Alaska, is a felony. Section 26, c. 2, tit. 1 and section 184, c. 13, tit. 1, Act March 3, 1899, providing a Code of Criminal Procedure for the district of Alaska (30 Stat. 1253, 1255, 1256, 1282). Under the statute the defendant was entitled to 10 peremptory challenges. Section 135, c. 14, tit. 2, Act March 3, 1899 (30 Stat. 1299). With respect to the right of the -defendant to challenge a juror peremptorily or for cause, chapter 14 of title 2 of the Criminal Code provides as follows:

“Sec. 121. * * * A challenge is an objection to a particular juror, and may be either, first, peremptory, or second, for cause.
“Sec. 122. That a peremptory challenge is an objection to a juror for which no reason need be given, but upon which the court shall exclude him.
“Sec. 123. That a challenge for cause is an objection to a juror, and may be either: First. General; that the juror is disqualified from serving in any action; or Second. Particular; that he is disqualified from serving in the action on trial.”
“Sec. 125. That particular causes of challenge are of two kinds: * * * 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 cannot 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. That a challenge for actual bias may be taken for the cause mentioned in the second subdivision of section 128 (125). 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 cannot disregard such opinion and try the issue impartially.”
“Sec. 129. That all challenges shall be taken first by the defendant and then by the plaintiff, and the defendant shall exhaust his challenges to a particular juror before the plaintiff begins. All challenges shall be taken to each juror as he is drawn and appears, and before another juror is drawn, unless the court, for good cause shown, shall permit a challenge to be taken afterwards, and before the number of the jury is completed.
“Sec. 130. That the challenge of either party shall be taken separately, in the following order, including in each challenge all the causes of challenge belonging to the same class: First. For general disqualification. Second. For implied bias. Third. For actual bias. Fourth. Peremptory; but either party may take peremptory challenge at any time before his right of challenge ceases.”
“Sec. 136. That as soon as the number of the jury has been completed, an oath or affirmation shall be administered to the jurors in substance, that they and each of them will well and truly try the matter in issue between the plaintiff and defendant, and a true verdict give according to the law and evidence as given them on the trial.”

By the act of May 17, 1884, providing a civil government for Alaska, the general laws of the state of Oregon then in force were declared to be the law in said district, so far as the same should be applicable, and not in conflict with the provisions of the laws of the United States. 23 Stat. 24 — 26. When the act of March 3, 1899, was before congress, it was stated that the act was reported by the committee on revision of the laws, and that with one or two exceptions it was a codification of the laws of Oregon upon the subject to which it related. The sections of that act which we have just quoted are found almost verbatim in title 2 of the Oregon Code of Civil Procedure (sections 180-195, Hill’s Ann.Laws Or.). The procedure adopted in impaneling the jury in this case appears to have been in accordance with the practice pursued under the same statute in Oregon, with the exception that in the present case the jurors were severally sworn to try the case immediately upon the completion of their individual examinations. The practice in Oregon is the same in both civil and criminal actions. The clerk draws from the trial jury box of the court one by one the ballots containing the names of the jurors, and as the jurors are.called they are examined, and all challenges, including peremptory, are taken as each juror is drawn and examined, and before another is called. As soon as the number of the jury is completed, and not before, the oath is administered to the whole body of 12 jurors, or their affirmations taken. This is clearly the requirement of sections 120 and 136 of the Alaska Criminal Code and sections 180 and 195 of the Oregon Code (Hill’s Ann.Laws Or.).

It is contended by the plaintiff in error that his right “to take a peremptory challenge at any time before his right of challenge ceases,” as provided in the fourth paragraph of section 130, continued until there were in the jury box 12 persons whom the court adjudged competent jurors. But, construing this paragraph in connection with the requirements of other sections of this chapter, we do not understand this to be its meaning. Section 129 prescribes the order in which the parties shall exercise their rights of challenge, and section 130 classifies the several grounds of challenge, and fixes the order in which they shall be taken. The fourth subdivision of the latter section fixes the peremptory challenge as the last in order, and for obvious reasons provides that it may be taken at any time before the right of challenge ceases, — that is to say, it may, for the purpose of expediting the trial, be taken as soon as the juror is called into the box, and before any examination is had as to his qualifications as a juror; or the order of examination may be interrupted, and the peremptory challenge interposed at any time before the examination in the order prescribed has been completed; or for good cause the court may permit a challenge to be taken afterwards, and before the number of the jury is completed, as provided in section 129. An objection to this interpretation of the fourth paragraph of section 130 is based upon the fact that this paragraph is identical with the fourth paragraph of section 182 of the Civil Code of Alaska (31 Stat. 360), where substantially the procedure contended for by the plaintiff in error is provided for the formation of a jury in civil cases. Section 181 of that Code provides: “The defendant first and afterwards the plaintiff shall challenge for cause. And when a challenge has been sustained the vacancy shall be filled before further challenge is made. And any new juror may at any time be challenged for cause by either party to the action. When the panel is full the defendant shall have one peremptory challenge, followed by one by the plaintiff, and so on alternately until each side has exhausted its right to such challenge.”

Because under the express terms of the two codes the right to a peremptory challenge ceases at one time in a civil action and at another time in a criminal action is no reason why the paragraph under consideration in the two codes should be held to mean the same thing, and that such meaning is that the right to a peremptory challenge does not cease in a criminal action until there are 12 jurors in the jury box, whom the court has adjudged competent to serve as jurors in the case. Indeed, the purpose of congress to prescribe in the Civil Code a different method of procedure in obtaining a jury in a civil action from that previously prescribed in the Criminal Code for a criminal action is conclusively determined by a comparison of the sections of the two codes relating to the subject. The objection that such a construction of the two codes attributes to congress the intention of placing property rights on a higher 'plane than human rights does not authorize thé court to'change the plain language of a statute. Besides, this distinction has been made in the statutes of the several states of the Union, and the distinction has been sustained by the courts. In People v. Scoggins, 37 Cal. 676, 680, the supreme court of California, commenting upon a like distinction in the civil and criminal practice acts of the state, said: “This variance between the methods of selecting juries in criminal and civil actions was probably dictated by the supposed necessity of placing the jurors in a criminal action under the control of the court during the process of forming the jury. In important cases many days are often consumed in selecting a jury, and during this interval it was doubtless deemed important to secure the jurors who had been accepted against improper influences by placing them under the control of the court; and hence the provision in section 341 that the challenge ‘must be taken when .the juror appears, and before he is sworn,’ unless, for good cause, the court shall peranit it to be taken after he is sworn, ‘and before the jury is completed.’ ”

It is assigned as error that the court erred in not permitting the defendant to challenge peremptorily Ike Powers after. 12 jurors were in the jury box, and while the defendant had the right to one peremptory challenge remaining. This juror was the twelfth juror called to the jury box, and the fifth juror examined and passed and sworn to try the case. It may be conceded that under section 136 of the Criminal Code this juror was sworn prematurely, as the jury had not then been completed. But he had been examined and passed in regular order as a juror without objection, and no cause was assigned for the exercise of this challenge afterwards, except the desire of the defendant to have the benefit of all the challenges allowed him by law; and he appears to have preferred to exercise his right to challenge against the juror Powers rather than against the juror West, the last juror examined. This was not a sufficient cause to entitle the defendant to exercise his right of peremptory challenge against this juror at that time, even though the jury had not been sworn. State v. Armington, 25 Minn. 29; State v. Scott, 41 Minn. 365, 43 N.W. 62.

The action of the court in denying to the defendant the right to challenge peremptorily the juror West is assigned as error. When this request was made the juror had been examined and passed for cause, and peremptorily challenged, and had been sworn as the twelfth juror in the case. The district attorney had also made a statement of the case on behalf of the prosecution, and the evidence by which he expected to sustain it. The reason given by the defendant in support of his request was that he had learned that the juror expressed an opinion as to the guilt or innocence of the defendant unfavorable to hihi. Had this request been made, and the reason for it given, before the jury was completed, the court would have been authorized, under section 129, to grant the request; but after the entire body of 12 jurors had been accepted and sworn, and the case for the prosecution opened to the jury, the request came too late.

Five jurors were challenged by the defendant for actual bias, and the challenge denied. The action of the court in denying this challenge is assigned as error. But these jurors were excluded by the defendant from the panel that tried the case by peremptory challenges, and when the jury was finally completed and sworn his peremptory challenges had not been exhausted. These jurors did not sit on the trial of the case. They did him no harm. Their biased views of the case, if such they had, did not enter into the verdict. The defendant cannot complain if a challenge for cause is denied unless some substantial right is prejudiced by such action, and no substantial right is denied to the defendant if, after excluding objectionable jurors by peremptory challenges, he has peremptory challenges left to him when the jury is finally completed. Hopt v. Utah, 120 U.S. 430, 436, 7 S.Ct. 614, 30 L.Ed. 708; Spies v. Illinois, 123 U.S. 131, 168, 8 S.Ct. 21, 31 L.Ed. 80; People v. Larubia, 140 N.Y. 87, 89, 35 N.E. 412.

The defendant challenged the juror Gibson for actual bias. The challenge was denied; and although the defendant had then two peremptory challenges left to him, he omitted to interpose this challenge, and the juror was sworn to try the case. We are of opinion that the assignment of error with respect to the action of the court in overruling the challenge to this juror for actual bias is properly before us for review. The fact that the defendant had a peremptory challenge left him, which he might have exercised when this juror was sworn, is a circumstance that may be considered, with the evidence obtained in his examination, in determining whether the juror was legally disqualified to sit on the trial of the case; but we do not think the defendant is compelled to exercise his right of peremptory challenge against a person whose condition of mind is found upon examination to render him legally disqualified to act as a juror in the case. The defendant may, under such circumstances, withhold his peremptory challenge for the contingency provided by law, namely, to secure the benefit of “an objection to a juror for which no reason need be given.” Was the juror Gibson disqualified under the statute? When under examination touching his qualifications to act as a juror, he said that he did not hear any of the testimony in the case of United States against Allen; that he was not present in the court room; that he had heard some one discuss this case (United States against George Hawkins); that the persons who were discussing the-case did not pretend to be witnesses in the case; they said they were listening to the trial; that they did not pretend to relate to him what the testimony in the case was; that he had read an account of the case in the newspapers; that he had read what purported to be portions of the testimony given in the case; that he thought he had read in the papers what purported to be the testimony of more than one witness; that he thought he read all the testimony there was in the papers; that from what he read in the papers he formed an opinion as to the guilt or innocence of the defendant George Allen; that that opinion was a fixed and decided opinion, — such an opinion as would require evidence to change; 'that he thought, from what he had heard and read, if he were selected as a juror in this case, he would go into the jury box with an opinion as to the guilt or innocence of the accused George Hawkins; that at the time he read the testimony in the papers he believed it to be a true account of the testimony in the case then upon trial; that the opinion which he formed was such an opinion as would require some evidence to remove; if the same evidence were produced (on the trial of George Hawkins) it would take some evidence to remove his opinion; that the opinion which he had at the time (he was testifying) as to the guilt or innocence of the defendant George Hawkins was based upon rumors, and also upon the statement he had read in the papers; that he did not know of any reason why he could not be a fair and impartial juror in the case. Thereupon the juror was challenged by counsel for the defendant for actual bias. Upon examination by the district attorney the juror continued to testify as follows: “That he did not know what the evidence in this case was. That he didn’t know, as a matter of fact, whether what he had read in the newspapers was the evidence in the case of the United States against George Allen. It was simply a newspaper version of what had occurred. That he supposed that it was the evidence in the case. That he did not know, as a matter of fact, that it was the evidence in the case. That at the time of reading it it did not create any impression in his mind as to the guilt or innocence of the defendant George Hawkins. That he had no opinion, at the present time, as to whether or not the defendant George Hawkins was guilty. That if he were selected as a juror, and sworn to try this case, he thought he could consider it fairly and impartially, and arrive at his verdict from the law and the evidence produced at the trial.”

We do not think that this testimony established the legal conclusion that Gibson was disqualified to act as a juror in the case. It is true he had formed a fixed and decided opinion as to the guilt or innocence of the codefendant George Allen, and from what he had heard and read he testified that he would go into the jury box with an opinion as to the guilt or innocence of the accused. But upon further examination he said that he had no opinion at that time as to whether the defendant was guilty, and, if selected as a juror., he would try the case impartially, and arrive at a verdict from the law and evidence produced upon the trial. Upon such testimony it was the province of the trial court to determine from all the circumstances whether the juror could try the case impartially or not. There were at that time ten jurors in the box, sworn to try the case, against whom no challenge for actual bias or other cause had been interposed. Only two jurors were required to complete the trial jury. The defendant had then remaining to him two peremptory challenges; and while, perhaps, it is immaterial in determining the present question, it is still a fact that when the jury was finally completed he had one peremptory challenge left. Under these circumstances, we cannot say that the court erred in overruling defendant’s challenge to the juror for actual bias.

While the court was engaged in impaneling the jury, a question by counsel for the defendant to a juror under examination “as to whether he had an opinion as to the guilt or innocence of the defendant George Allen” was answered by the court by the remark, “That is one of the things that is an established fact in this community.” This statement of the court in the presence of the juror was objected to by counsel for the defendant, and is assigned as error. The juror under examination when this remark was made was the ninth juror called to the box, and the third juror sworn to try the case. It was, in effect, a declaration on the part of the court that the robbery was an established fact, not merely in the judgment of the jury that tried the case, but in the opinion of the entire, community,, including the jurors from which a trial jury was then being drawn; that one of the parties charged jointly with the defendant with the commission of the crime was guilty of the offense charged; and that the only question in the pending case was whether or not the defendant then on trial was a party to the crime. We think this was error. The trial of the defendant Allen had just been concluded. The record before us discloses the fact that the challenges interposed against jurors for bias in the case on trial were because of opinions formed by them as to the guilt of the defendant upon the evidence taken upon that trial, and which they had heard or read. Under such circumstances the remark of the court certainly had the effect of prejudicing the defendant’s case in the minds of the jurors, — a prejudice which was not removed or modified by any qualification or instruction subsequently given to the jury. For this error the judgment must be reversed, and the case remanded for a new trial.

The other errors assigned may not arise upon a new. trial, and therefore do not call for comment at this time. The judgment is reversed.

ROSS, Circuit Judge, concurs in the judgment and in what is said in the opinion on the last point considered therein.  