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Sections 5512 and 5515 of the Revised Statutes, providing for the indictment of
election officers for misconduct at elections, held not repugnant to or in viola
tion of the constitution of the United States. The objection to a juror that he is disqualified to act as such, under section 820 of
the Revised Statutes, which disqualifies a person as a juror if he voluntarily took any part in the rebellion, held waived by a party under indictment after he has pleaded not guilty to the indictment, and gone to trial without making such objection. Objections by reason of irregularities of this nature should be raised by the defendant, either on motion to quash the indictment or by plea in abatement, if he had no opportunity or did not see fit to challenge the
array. The action of the court in excluding particular persons, who might properly have
served on a jury, is not enough to vitiate all the proceedings, so as to render them null and void. Such action might afford zufficient ground for quashing the indictment, if the objection is timely and properly made.
On a Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the Northern District of Flor. ida.
Sol. Gen. Phillips, for the United States. * No counsel for Gale &Gibson.
BRADLEY, J. The indictment against the defendants in this case was for misconduct as election officers at an election held in Florida for a representative to congress, in stuffing the ballot-box with fraudulent tickets, and abstracting tickets which had been voted. In impaneling the grand jury which found the indictment, four persons, otherwise competent, were excluded from the panel for the causes mentioned in section 820 of the Revised Statutes, which grounds are, in substance, voluntarily taking part in the rebellion, and giving aid and comfort thereto. The exclusion of these persons for this cause appears by an amendment of the record, made nunc pro tunc, showing what took place; but no objection was taken to the indictment or proceedings on that account until after a plea of not guilty, and a conviction, when the objection was first taken on motion in arrest of judgment. The indictment was founded upon sections 5512 and 5515 of the Revised Statutes, and the constitutionality of those sections was called in question, as well as that of section 820. The judges having disagreed upon the motion in arrest of judgment, certified up the following questions for the determination of this court, namely:
(1) Whether sections 5512 and 5515 of the Revised Statutes of the United States, on which such indictment was founded, are repugnant to and in violation of the constitution of the United States; (2) whether section 820 of the Revised Statutes of the United States is repugnant to and in violation of the constitution of the United States; (3) whether judgment of this court could be rendered against the defendants on an indictment found by a grand jury impaneled and sworn under the section aforesaid; and (4) whether the indictment aforesaid charges any offense for which judgment could be rendered against the defendants in this court under the constitution and laws of the United States.
The question of the validity of sections 5512 and 5515 has already been decided by this court in the cases of Siebold and Clarke, 100 U. S. 371 and 399, and was determined in favor of their validity. As to those sections, therefore, the answer must be in the negative, namely, that they are not repugnant to, nor in violation of, the constitution of the United States.
The second question, as to the constitutionality of the 820th section of the Revised Statutes, which disqualifies a person as a juror if he voluntarily took any part in the rebellion, is not an essential one in the case; inasmuch as, by pleading not guilty to the indictment and going to trial without making any objection to the mode of selecting the grand jury, such objection was waived. The defendants should either have moved to quash the indictment or have pleaded in abatement, if they had no opportunity, or did not see fit, to challenge the array. This, we think, is the true doctrine in cases where the objection does not go to the subversion of all the proceedings taken in impaneling and swearing the grand jury, but relates only to the qualification or disqualification of certain persons sworn upon the jury or excluded therefrom, or to mere irregularities in constitu. ting the panel. We have no inexorable statute making the wh ole proceedings void for any such irregularities.
Chitty, in his work on Criminal Law, (vol. 1, p. 307,) says: “ It is perfectly clear that all persons serving upon the grand jury must be good and lawful men; by which it is intended that they must be liege subjects of the king, and neither aliens nor persons outlawed even in a civil action; attainted of any treason or felony; or convicted of any species of crimen falsi, as conspiracy or perjury, which may render them infamous. And if a man who lies under any of these disqualifications be returned, he may be challenged by the prisoner before the bill is presented; or, if it be discovered after the finding, the defendant may plead it in avoidance, and answer over to the felony; for which purpose he may be allowed the assistance of counsel, on producing in court the record of the outlawry, attainder, or conviction on which the incompetence of the juryman rests.”
This is, undoubtedly, the general rule as to the manner in which objection may be taken to the personnel of the grand jury, though in this country a motion to quash the indictment may be made instead of pleading specially in abatement. The requirement of answering over to the felony in connection with the plea in abatement is for the benefit of the accused, in order that he may not be concluded on the merits, if he should fail in sustaining his special plea,-a precaution which probably would not be necessary in our practice.
By an English statute, passed in the eleventh year of Henry IV., it was declared that indictments made by persons not returned by the sheriff, or by persons nominated to him, or who were outlawed or had fled to sanctuary for treason or felony, should be void, revoked, and annulled. On this statute it was held that if any such persons were on a grand jury which found an indictment, it made the whole void, and if the matter appeared on the record, or in the proceedings of the same court, advantage might be taken of it on motion in arrest of judgment, or even on the suggestion of an amicus curiæ; but if it did not appear on the record of the cause, or in the records of the same court, the better opinion was that it could only be pleaded in abatement, or raised by motion to quash. Hawkins says:
“If a person who is tried upon such an indictment take no exception before his trial, it may be doubtful whether he may be allowed to take exception afterwards, because he hath slipped the most proper time for it; except it be verified by the records of the same court wherein the indictment is depending, as by an outlawry in the same court of one of the indictors,” etc. Hawk. bk. 2, c. 25, § 27.
In Bac. Abr. (Juries, A) it is said that the court need not admit of the plea of outlawry of an indictor, unless he who pleads it have the record ready, or it be an outlawry of the same court; and it is added, as the better opinion, that no exception against an indictor is allowable, unless the party takes it before trial. Chitty lays down the same rule. 1 Crim. Law, 307, 308. Lord Chief Justice HALE, speak. ing of what the caption ought to contain, among other things, says:
“It must name the jurors that presented the offense, and therefore a return of an indictment or presentment per sacramentum, A. B., C. D., et aliorum, is not good, for it may be the presentment was by a less number than 12, in which case it is not good, (H. T. 41 Eliz. B. R. Croke, No. 16, Clyncard's Case, 654;) and it seems to me that all the names of the jurors ought to be returned, for the party indicted may have an exception to some or one of them, as that he is outlawed, in which case the indictment may be quashed by plea, though there be 12 besides without exception, for possibly that one, who is not legalis homo, may influence all the rest, and so vitiate the whole indictment.”
All these authorities tend to the same point, namely, that the proper mode of taking objection to the personnel of the grand jury, even under the statute referred to, when the matter does not appear of record, is by plea in abatement.
If, under the operation of so stringent a statute as that of 11 Hen. IV., the general rule was that the objection to the constitution of the grand jury must be taken before trial, and could only be taken afterwards when it appeared on the record, much more would it seem to be requisite that all ordinary objections based upon the disqualification of particular jurors, or upon informalities in summoning or impaneling the jury, where no statute makes the proceedings utterly void, should be taken in limine, either by challenge, by motion to quash, or by plea in abatement. Neglecting to do this, the defendant should be deemed to have waived the irregularity. It would be trifling with justice, and would render criminal proceedings a farce, if such objections could be taken after verdict, even though the irregularity should appear in the record of the proceedings. In most cases it could not appear in a record properly made up; but, if appearing at all, it would require (as in the present case) a special certificate of the court analogous to a bill of exceptions, or a case stated, not constituting a part of the true record. But even if it should appear upon the record as a proper part thereof, the fact of pleading to the merits and going to trial without taking the objection would also appear, and would amount in law to a waiver of the irregularity. If it could be taken advantage of on a motion in arrest of judgment, it would be a good ground of reversal on error, and all the proceedings of a long term might be rendered nugatory by admitting a person to the grand jury or excluding a person from it, without the matter being called to the attention of the court; whereas, if the objection were taken in limine, the irregularity might be corrected by reforming the panel or summoning a new jury.
These remarks apply with additional force where the objection is not to the disqualification of jurors who are actually sworn upon the panel, but to the exclusion, or excuse, of persons from serving on the panel. A disqualified juror placed upon the panel may be supposed injuriously to affect the whole panel; but if the individuals forming it are unobjectionable, and have all the necessary qualifications, it is of less moment to the accused what persons may have been set aside or excused. The present case is of the latter kind. No complaint is