396
93 FEDERAL REPORTER.
state'law as allowed such review was inapplicable to a proceediiigin the' circuit court of the United States. The court &aid.: "The case throughout, from the applicat!l)not the col']}oration for the appointment of. commissioners to assess. dalLuges to the owner of the land propOlled to be taken until judgment upon the award of the commillsioners or upon. verdict of. a jury allljlessing those damages, remains in the circuit court of. the United States and under its supervision and control. The action of that court in this case, as in other casell on the common-law side, Is not reviewable by this court by writ of. certiorari {U. S. v. Young, 94 U. S. 258), but onl:r by writ of error, which does not lie until after judgment disposing of the whole and adjudicating aU the rights, whether ()f title or of damages, involved in tl;le transaction. The case i.s not to be sent up in fragments by successive writs of error. Act Sept. 24, 1189, § 22 (1 Stat. 84, c.20); Rev. St. § 691; Rutherfor'dv. Fisher, 4 DaH. 22; . Holcombe v. }Ic1{usick,20 How. 552, 554; Bank v. Whitney. 121 U. S. 284, 7 Sup, Gti 897; Iron Co. v. Martin, 132 U. S. 91..10 Sup. Ct. 32; 1fcGourkey v. Railway Co., 146 U. S. 5136, 13 Sup. Ct. 170."
,'Writ of error dismissed for wan'tof jurisdiction.
WILLIAMS v. UNITED<STATES. (Circuit'Court of Appeals, Ninth Circuit.
,
February 13, 1899.)
1.
JURORS....,QUALJFIOATIONS-OPINIONS-REVIEW OF TRIAL COURT.
A juror had discussed the case with a former attorney of defendant, with whOm he was intimately acquainted, and became prejudiced against defendant. Although he said he did not have a fixed opinion as to defendant's guilt, he stated that his mind was "strongly colored" in the matter, and that his prejudice was so strong that it would require evidence to remove it, and would perhaps, In some degree, shape his conviction.s or judgment; and, In reply to a question whether he could return a verdict solely on the .evidence, he said: "I am not infallible. · · · I think I WOUld. I feel that Held, that it was error t() overrule Ii <:haUengefpr bias. An indictment alleging that money was extorted from one person is not a t variance with evidence· that, when the extorsive demand was made on such person, he olJtained the money from another, in defendant's presence, and then handed it to defendant. Gilbert, Circuit Judge, dissenting.
2. EX'fORTION-INDICTMENT AND PROOF-VARIANCE.
In Error to the District Court of the United States for the Northern District ·of California. Geo. D. Collins, for plaintiff in error. Henry S. l"oote and Bert Schlessinger, Asst. U. S. Atty. Before GILBERT and ROSS, Circuit Judges, and HAWLEY, Distl'ict Judge. . ROSS, Circuit Judge. Against the defendant below (the plaintiff in error here), Richard S. Williams, .two indictments, numbered, respectively, 3,267 and 3,268, were returned in the district court of the United States for the Northern district of California; each indictment containing two counts. The cases were consolidated and tried together, resulting in a verdict of guilty in each case. The accused interposed a'motion in arrest of judgment on the second count of
WILLIAMS V. UNITED STATES.
397
each indictment, and also moved for a new trial in each case. The first motion was sustained by the trial court, and, the motion for a new trial having been overruled, judgment was entered against the defendant on the first count of each indictment, from which judgment an appeal was taken to the supreme court, where the judgment was reversed and the case remanded for a new trial. 168 U. S. 382, 18 Sup. Ct. 92. Upon the retrial in the district court upon the first count in each indictment, a verdict was returned finding the defendant not guilty as charged in indictment numbered 3,268, and guilty as charged in the first count of indictment numbered 3,267, on which verdict he was sentenced by the court below under the first count of the last-mentioned indictment. On the present appeal, therefore, we have only to consider the first count of that indictment, by which it was, in substance, char;ged that the plaintiff in error, an officer of the treasury department, duly appointed and acting under authority of the laws of the United States, and designated as Chinese inspector of the port of San Francisco, and by virtue of his office being authorized, directed, and required to aid and assist the collector of customs of that port in the enforcement of the various laws and regulations relating to the coming of Chinese persons and persons of Chinese descent from foreign ports to the United States"Did then and there, as 'such officer, willfully, knowingly, corruptly, and felouiously, for the sake of gain, and contrary to the duty of his said office, and by color thereof, ·ask, demand, receive, extort, and take of one Wong Sam, a Chinese person, a certain sum of money, to wit, one hundred dollars, which said sum of money was not due to him, the said Richard S. Williams, and which the said Richard S. Williams' was not then and there. or at all, by virtue of his said office, entitled to ask, demand, receive, or take of said 'Vong Sam, or any other person. '.rhat is to say, that on the 31st day of August in the year of our Lord 1895 there arrived at the port of San E'rancisco aforesaid, from a foreign port or place, to wit, the port of Hongkong, in the empire of China, a male person, of Chinese descent, to wit, one Wong Lin Choy, who claimed to the collector of customs that he was entitled to land, be, and remain in the United 8tates, on the ground that he was a native born of said United Statel:!; that thereafter, * * * on the 18th day of September in the year of our Lord 1895, at said city and county of San Francisco, state and Northern district of California, the said Richard S. Williams corruptly and extorsively, for the sake of gain, and contrary to the duty of his said office, and under color 'thereof, did extort, receive, and take of said 'Vong Sam. who was then and there interested in the application of claim of said 'Vong Lin Choy as aforesaid, a sum of money, to wit, the sum of one hundred dollars, as aforesaid; the said Hichard S. 'Williams, under color of his said office, having previously, to Wit, on the 31st day of August in the year of our Lord 1895, at said city and county, state and district, aforesaid, feloniously and corruptly obtained and exacted a promise from said Wong Sam for the payment thereof by him to him, the said Richard S. 'Williams, by then and there falsely and corruptly representing to the said ';Yang Sam that without the payment thereof to him, the said Wchard S. 'Villiams, the said 'Vong Lin Choy would not be permitted to land at said port, be or remain within the United 8tates, but would be returned to said foreign port whence he came,-against the peace and dignity," etc.
The first point relied upon by the appellant, and in respect to which error is assigned, relates to the ruling of the court below in respect to the qualifications of one Elliott to serve as a juror. He was examined on his voir dire as to his qualifications. The bill of exceptions states that in response to a question put to him by the
3l:l.8:
UI,rited
as heknew anytpi:IJ:gof :f1Dswered that. "he had. discQ.ised the case wlt4 M9,WI'Y'IlM one till/-e, theattorney:\>f defendant in; that hewas;intimately ,acquainted,witP, said Mowry, tpe result of .aaid dillcul!lsion,he (said, Elliott) Wll/il, ,the case." The bill of,e;x;ceptipns proceeds: , lid
, "Said ElU,<;ltt further stated: '1 opinjqn,as to: the guilt or ,the, defendallt" ,put my jl:'l ,cplored, and perJi./l.ps, in iJlY c6nvictionsol:' It is colored, III the wattel.';,I" That thereupon counsel 'for'the dJfendant asked aaid Elllott whether his {said EllIott's)sald 'prejudicE! 'was, S0 strong, tliatit would require ' evidence to ,remove it,lIlld lilI\i4 Elliott, it was ,of ,that strength, and tbll.t ,it would ,require" ,!f"idence to, renwre. ,ft. That "defendant challenged said Elliott upon the ground ;that and prejudiced., The prosecution joined issue on said' challenge.' The I 'coUrt tl;len asked the following 'The Court: Q. lDo !'you think you w'iU be able to question of' the juror, sit asa juror, and return a verdict ,based llolely upon the evidence that you would.b.ellr?' To which said 'A. ,1 am not infallible. From what! sallI, I think 1 woUld, I think I plil:'l!loCsS a natural sense ,of justice. I think I would. I feel that 'l might.'" ' "', .' . ,
The cou;rt below the cballepge, to ,ruling the deQ-uly excepted, and Elliott was, sworn, and served.as a juror; his peremptory prior to wJ:1ich the defendant had that Elliott )Vas n6tanimpartial jur6r. No one, we apprehend, will deny that the accused was entitled to animpartiaI jury. Tbat rigbtwas not only securedto him by the sixth amendment of the c()llstitution of the Vnited States,'butJsreco.gnized by every justice. is egtirely mere bypothetic::l,l opinions, court expressed or unexpresliJed,. derived from public rumor". statements in public journals, common;notoriety, and other like s()urtes, do not a juror, wbenit is made t<;>appear thatnobvithstanding such opinions, he and will be governed in his actions' in the case entirely by the evidence that maybe.introduced upon the trial. All authorities concede, said the supreme couet in Reynolds v. U. S., 98 U. S. 145, 155, "that, if hypothetical only, the partiality is not so manifesfas to necessarily set the jurol;' aside." The court then. quotes the rule as stated by Mr. Chief Justice Marshall in Burr's Trial, 1 Burr's Tr. 416, Fed. Cas. No. 14,692g, that: "Light impressions, whiCh may fairly be presurped to yield to the testimony that may be offered, which D;lay leave the mind open to a fair consideration of the testimony, .constitute no sufficient· objection to a juror; but those strong and -deep hnpressions which cloSe the mind the testimony that may be offered in opposition to them, which will combat that tej;\timony and resist its force, do constitute a sUfIiclentobjection to hbn."
The supreme court, in the Reynolds Case, then proceeds: "The theol';r of the law is that a juror wl:j.o bas formed an opinion cannot be impartial. Every opinion' which' he may enterWn need not necessarily have that effect. In these days of newspaper enterprise and universal education, every, case of public interest is, almost, as, a.;matter of. llIecl:lssity, brought to the attention of all the intelligent in a vkinity; and scarcely anyone can .be found among those best fitted for jurors who has not read or heard of in respect to its merits. it, and who has not some itnpres$ionot some' It is: clear, therefore, that,.upon the trial; of ,the issue of fact raised by a be called upon to determine challenge for such cause, the.,court will
399
whether the nature and strength of the opinion formed are such as In law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court unless the error is manifest. No less stringent rules should be applied by the reViewing court in such a case than those which govern in the consideration of motions for new trial because the verdict is against the evidence. It must be made clearly to appear that by the evidence the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The case must be one in which it is manifest the law left nothing to the 'conscience or discretion' of the court."
The rule thus declared by the supreme couct has been subsequently adhered to. Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614; Spies v. Illinois, 123 U. S. 132, 8 Sup. Ct. 21. Now, turning to the examination of the juror Elliott, it is seen that he had previously discussed the case with the former attorney of the defendant thereto, with whom he was intimately acquainted, and from that discussion he became prejudiced, which prejudice is shown by his answer to the 'question asked by the court to have been against the defendant. And, although the juror stated that he had not a "fixed opinion" as to the guilt or innocence of the defendant, he stated that his mind was "strongly colored" in the matter, and that his prejudice was so strong that it would require evidence to remove it, and that perhaps, in some degree, it would shape his convictions or judgment. Surely, a mind so affected cannot be properly said to be. open to a fair consideration of such evidence as should be given, or to be in such condition as to be fairly presumed .to yield, without any J.'esistance,. to the force of the evidence. And that the juror himself did not feel cectain that the strong prejudice he entectained could be overcome by the evidence plainly appears, we think, not dnly frOill his that itwould perhaps, in some degree, shape his convictions or judgment, but from his answer to the question of the court, in which he was asked he thought he would be able. to sit as. a juror, and return a verdict based solely upon the evidence he would hear; his answer being: "Il!-m not infallible. From what I said, I think I would. I tltink I pos: sess a natural.sense of justice. I think I would. I feel that I might."
Certainly, this answer also indicated a decided doubt in the mind of.the juror whether he would be able to disregard the strong prejudice he derived from .his. discussion of the case with the defendant's former attorney therein, and be controlled solely by the evidence introduced on the triaL The law does not and cannot deem such a juror impactial. Every defendant in every criminal case is by the law presumed to be innocent until' his guilt is established by proof beyond a reasonable doubt, and. to the benefit of thatreasonable doubt the defendant is entitled from the beginning to the end· of the trial; and it applies as well to the examination of jurors as to any other step in the trial. In Wright's Case, 32 Grat. 941, the court said: "The jury must be ahle to give the accused a fair and impartial trial. Upon this point nothing should be left to inference or doubt. All the tests applied by the courts, all the inquiries made into the state of the jurors' feelings,
Q;J FEDERAL. R:E;PORTER.
are the
of securings,vJl:mnal competent to and weigh and lr:eIlMr ,Il. verd,ict. unimpaired by prejudice or there is a, :re/lsonabledoubt of whether the juror comfs up to the that doubt should be r.esolved in favor of the acc),l,sell." .
-V. l;'eople, 13. Mich. Judge Cooley said that in criminal lcases, wherein,after full examination, the testimony given upon a challenge leaves a reasonable doubt of the impartiaIity<of the juror, the be given the 'benefit of the doubt. In'Pehple v. McQuade,IW N.y. 300, 18 N. E. 162, the court of appeals of that state, speaking of the ,statutory modification of the 'commo'ii·law rUle, said:' .i "There hilS been no change of the f)1ndamental rule that an accused person is to be tried by a fair and impartial jury. Formerly the fact that a juror had formed; ana ,expressed an opinion touching the guilt or innocence of a person accusedogfcrime was .in law a disquaHflcation; and, although he expressed an opinjo,n, that he could hear and. decide' the case upon the evidence produced, 't11is did not render him competent. * * * Now, as formerly, an existing opihion;by'a person called as a juror, of the guilt or innocence of a defendant charged With crime, is prima facie a disqualIfication; but it is not now, as before., a; Conclusive objection, provided the juror makes the declaration specified {that he 'qelieves that such opinion or impression will not Intiuence his veraiet, and he can render an ImPl/-rtial verdict according to the evidence), and the court, as judge of the fact, Is satisfied that such opinion will not influence his action.Bnt the declarat!en must be unequivocal. It does not satisfy the requirement, if the declaration is qualified or conditional. It is not enough to ,be able to point to detached lang\IliIge, Which, alone cons.trued, would seem to meet the statutory reqUirement, 'If, on construing the w}lOle declaration togetqer.1t is apparent the juror is not able to' express an absolute belief that his opinion will not 'influence his verdict."
a
In State, v. McClear, 11 Nev. 39, 67, Hawley, C. J., in concluding opinion, .said: .
!'Whennl)t regulated by' statutory provisions; we think that whenever the opinion .of the juror has Qeen formed upon hearing the evidence at a former trial, or at .the preliminary examination before a committing magistl'ate, or from 'any cause has' been so deHberately entertained that it -has become a fixed and settled 'beljef of the prisoner's guilt or innocence, it would be ''''Tong to receive him, In either event, in deciding these questions, courts I;emember that the infirmitiell of human nature are such that opinions. l>ti6e' deliberately formed and expressed cannot easIly be erased, and that prejudices' openly avowed cannot readily be eradicated from the mind. Hence,Whenever .it appears to the ·satisfaction -of the cOllrt that the bias of the juror, actual or implit\d, Is SO' strong that it canU9t easily be shaken off, ileither thepril;loner nor the state ought to be subjected to the chance of con· viction or acquittal it necessarily' begets. But whenever the court is satisfied that the of the juror 'were founded on newspaper reports and casual ()\)llversations,i WhIch the' juror feels conscious he can readily dismiss, and where he hilS no deliberate and fixed r:>pini<m, or personal prejudice or bias, in favor of or .against the dtlfendant, he oughtnot,'to be excluded. The sum and substance of 'this whole question is that. a' juror must come to the trial with a mind uDcommitted, anldbe prepared to weigh 'the evidence in impartial scales,. and a true verdict render according to, the law and .the evidence."
See, also,'Pe()ple v. Wellll, 100 OaL227, 34 Pa,c.718; People v. 'Casey, 96 N:Y.'122; Stephens v. People, 38 :Mich.' 739; Smith v. Eames, 36 Am. Dec. 515, and cases cited in note thereto. . .. One point'made on behalf <!f the 'appellant if is necessary to decide, afl, be sustaine(J" woulli, in view of the evidence