
    141 F. 956
    GIUS et al. v. UNITED STATES.
    No. 964.
    Circuit Court of Appeals, Ninth Circuit.
    Oct. 9, 1905.
    John R. Winn and L. R. Gillette, for plaintiffs in error.
    Robert E. Friederich and John J. Boyce, U. S. Attys., and Edward E. Cushman, Sp. Asst. Atty. Gen., for the United States.
    Before GILBERT, ROSS, and MORROW, Circuit Judges.
   MORROW, Circuit Judge.

The defendants in the court below (plaintiffs in error) were indicted under section 127 of the Penal Code of Alaska (Carter’s Annotated Alaska Codes) for the crime of keeping a house of ill fame. A trial was had before a jury of 6 persons, resulting in a verdict against the defendants. Judgment was entered in accordance with this verdict, from which a writ of error was sued out to this court.

The principal error assigned is the action of the court in compelling the defendants to go to trial before a jury of 6 persons, refusing to allow the full panel of 12 jurors. Section 171, p. 179, Code Civ.Proc. (Carter’s Ann.Alaska Codes), providing for the formation of juries, provides, among other things, as follows: “The jury shall consist of twelve persons, unless the parties consent to a less number. Such consent shall be entered in the journal: Provided, that hereafter, in trials for misdemeanors, six persons shall constitute a legal jury.”

The Supreme Court of the United States, in Rassmussen v. United States, 197 U.S. 516, 25 S.Ct. 514, 49 L.Ed. 862, considered the identical question presented here, and held that, under the treaty with Russia ceding Alaska and the subsequent legislation of Congress, Alaska has been incorporated into the United States, and the Constitution is. now applicable to that territory; that under the fifth and sixth amendments to the Constitution Congress cannot deprive one there accused of a misdemeanor of a trial by a common-law jury, and therefore section 171 of the Alaska Code, in so far as it provides that in trials for misdemeanors six persons shall constitute a legal jury, is unconstitutional and void.

Upon the authority of this decision, the judgment of the District Court is reversed, and the cause remanded for a new trial.  