Kleindienst v. United States

Mr. Justice Kobb delivered the opinion of the court: The government contends: First, “that the defendant suffered no prejudice in this matter, inasmuch as the law authorizes, in adultery cases, proof that the woman was reputed to be a prostitute, and that the house was reputed to be a bawdy-house;” and, second, that the record discloses no challenge, either peremptory or for cause, of the alleged objectionable jurors, nor does it show the peremptory challenges to have been exhausted. Article 6 of the Amendments to the Constitution declares that “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury * * * to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.” It is admitted that the government introduced evidence on the trial of Margaret Stout, that defendant “was a frequenter for immoral purposes of a house of prostitution” kept by her. It also is admitted that the trial court sharply brought the identity of defendant to the attention of the jury, while there was upon the stand a witness whose testimony in the present case was relied upon by the government to establish defendant’s guilt under one count of the' indictment against him. Defendant could take no part whatever in that trial, although his interests were vitally involved. He was not confronted with the wit — 197 — nesses against liim. lie could not cross-examine them, nor could be introduce any evidence in his own behalf. When called to trial, therefore, he was confronted with this extraordinary situation: Twelve members of the panel from which a jury to try him was to be selected already had reached a conclusion wholly inconsistent with his plea of not guilty. The attitude of the other members of the panel toward him could have been little better; for, assuming that they were intelligent men, how could it reasonably be said that having heard the evidence against him and having had his identity sharply brought to their attention by the trial court while that evidence was being introduced, they were not prejudiced against him ? A trial forced upon a defendant in those circumstances could be little more than a farce, with the constitutional guaranty of an impartial jury overridden and the humane presumption of innocence reversed. Defendant had the absolute right to be tried by a jury free from bias and prejudice, and not by a jury that already had heard material evidence against him, under circumstances that could not have failed at least to raise a very grave doubt as to his innocence. To our minds there was every reason why one of these motions should have been granted, and no reason why it should not. The second contention of the government is equally untenable. The right of challenge has its source in the common law, and always has been held essential to a trial by jury. In Lewis v. United States, 146 U. S. 370, 376, 36 L. ed. 1011, 1014, 13 Sup. Ct. Rep. 136, the court quotes from Blackstone and Story, who said that the right of challenge is “a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous.” It is an arbitrary and absolute provision, and permits an accused to exclude from the jury and juror against whom he entertains prejudice, although not founded upon any reason rvhich would disqualify him. People v. McQuade, 110 N. Y. 284, 1 L.R.A. 273, 18 N. E. 156. Of what practical use, therefore, would be this provision if the government’s contention bo accepted? In the present case we have found that, upon the admitted facts, every member of the — 198 — panel was disqualified because of prejudice. Defendant, therefore, even though he exhausted his peremptory challenges in excluding jurors who should have been excluded for cause, still would'have been unable to prevent the sitting of disqualified jurors. Indeed, while the record does not so show, counsel for defendant in the argument at bar stated without contradiction that defendant’s peremptory challenges were exhausted. The government cites Hopt v. Utah, 120 U. S. 430, 30 L. ed. 708, 7 Sup. Ct. Rep. 614, in support of its contention, but in that case it affirmatively appeared that the defendant had not exhausted his peremptory challenges, and that no prejudice had resulted to him from the ruling of the court in disallowing two challenges for bias, for the reason as pointed out by the court that “impartial and competent jurors were obtained in their place.” Further comment is unnecessary. But, says the government, defendant should have examined the jurors upon a voir dire for the purpose of determining “whether or not those jurors were prejudiced against defendant or would be prejudiced against him.” Having brought to the attention of the court undisputed facts which showed beyond question the disqualification of those jurors, we think defendant fully protected his rights. He told the court, as plainly as he could, that he was dissatisfied with every member of the panel, and the reasons he gave left no room for doubt. There was no fact in dispute. Why, then, was it necessary to examine the jurors? “In such circumstances it was unnecessary to go through the idle form of articulating the obvious.” Kansas City Southern R. Co. v. Jones, 241 U. S. 181, 183, 60 L. ed. 943, 945, 36 Sup. Ct. Rep. 513. Had any juror insisted that he was not prejudiced, his answer would have been inconsistent with human experience. Dilworth v. Com. 12 Gratt. 689, 65 Am. Dec. 264. We rule, therefore, that under the admitted facts the refusal of the court to grant one of these motions deprived defendant of a very substantial right, and amounted to such an abuse of discretion as to require a reversal of the case. It is next contended that sec. 1024 of the Eevised Statutes, Comp. Stat. 1916, sec. 1690, authorizing the joinder of of — 199 — fenses, does not apply to the District of Columbia; and that, even if it does, the joinder in this case was improper. We think both contentions untenable. Section 1024 does apply to the District of Columbia. Bass v. United States, 20 App. D. C. 232; Benson v. United States, 27 App. D. C. 331; Lee v. United States, 37 App. D. C. 442; Miller v. United States, 38 App. D. C. 361, 40 L.R.A.(N.S.) 973; Kidwell v. United States, 38 App. D. C. 566. Section 1024 authorizes the joinder in one indictment of counts “for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined.” In the Kidwell Case the question was reviewed, and the court reached the conclusion that the clause “which may be properly joined” vests in the trial court a sound discretion in deciding whether a fair and impartial trial will be prevented by a joinder. In Williamson v. United States, 168 U. S. 382, 42 L. ed. 509, 18 Sup. Ct. Rep. 92, there was sustained a consolidation of two indictments, each of which charged the crime of extortionately receiving from a different Chinese person a certain sum of money. The court said: “Here, the indictments were against the same person, the offenses charged were of the same kind, were provable by the same kind of evidence, and could be tried together without embarrassing the accused in making his defense.” In the present case the charges were against the same person and the offenses charged were of the same kind, provable by the same evidence. We are clearly of the'view that the joinder was proper. We come now to a more serious question. In the first count of the indictment defendant was charged with the commission of adultery on or about the 5th day of March, 1915, and in the second count on or about the 10th day of April of the same year. At the opening of the trial the defendant, through his counsel, moved the court to require the government to notify him whether the government would undertake to prove offenses as of the dates alleged in the indictment, and, if not, “to otherwise identify the two specific transactions.” Counsel for the government finally said that the offense laid in the first count “was committed between the 23d day of February and the loth — 200 — day of March, and the other offense was committed between the 15th day of March and the 10th day of April;” in other words, that the two offenses were committed between February 23 d and April 10th. A more particular specification was requested, but the court declined to require it. The government proceeded to introduce evidence, and according to the statement in the government’s brief, the testimony “tended to show repeated offenses of adultery by the defendant with Margaret Stout, beginning at a period prior to February, 1914, and continuing until April, 1915. These offenses were committed at eight different houses maintained during said period by Margaret Stout.” The evidence further tended to show that between February 23d and April 10th, the period mentioned by the government at the opening of its case, defendant visited Margaret Stout for immoral purposes as often as three or four times each week and sometimes daily. At the close of the government’s case defendant’s counsel moved the court to require the government to identify and specify the two offenses for which the government would ask a conviction, but over the objection and exception of the defendant the court overruled the motion. Thereupon evidence was introduced in behalf of the defendant, and, at the close of all the evidence, defendant repeated his motion, which the court took under consideration until after the noon recess, just prior to the argument of the case, when the government identified two offenses upon which it would ask a conviction. The failure of the court to require an earlier identification is assigned as error. It appears, therefore, that notwithstanding evidence was introduced tending to show “repeated offenses of adultery” covering a period of more than a year, and including the period named by the government at the opening of the case, not until his counsel was called upon to argue his case to the jury did defendant know upon which offenses the government would ask a conviction. He was embarrassed and prejudiced in the introduction of evidence in defense by this lack of knowledge. In People v. Flaherty, 162 N. Y. 540, 57 N. E. 73, such a practice was severely condemned, and in State v. Norris, 122 Iowa, — 201 — 155, 97 N. W. 999, the court said: “It may be that the precise' date and place could not properly be required, but this is never exacted farther than is necessary to identify the transaction. * * * Greater certainty than is possible under the evidence is never required. * * * But where- the periods are distinct and separate, as in the instant case, the rights of the defendant are not duly guarded when the election is denied; for this imposes upon him the hardship of meeting numerous charges at different periods of time, instead of within a definite period, upon which a conviction must be predicated, and exposes him to the danger of the jurors finding him guilty under proof of several transactions, separated by distinct intervals, when they might be unable to agree upon his guilt of any offense if limited to a particular date or period.” To the same effect are Com. v. Fuller, 163 Mass. 500, 40 N. E. 764, and Ketchingman v. State, 6 Wis. 429. At the close of its evidence the government was in a position to identify the two offenses upon which it would rely before the jury, and it then should have been compelled to do so. If the government tíren was unable thus to identify, it is apparent that there was no case for the consideration of the jury. Notwithstanding that the evidence for the government tended to show the commission of almost a score of offenses between the 23d of February and the 10th of April, the only specification defendant had when he introduced his evidence was that the government ultimately would fix upon two of those offenses, — presumably the two as to which his defense might prove the weakest. Before he introduced his evidence, defendant was entitled to a much more definite identification of the offenses relied upon, the withholding of which enabled the government to rely not so much upon its own case, but upon any developed weakness of defendant’s defense as to particular transactions. While prejudice did result to the defendant, no prejudice could have resulted to the government had it been compelled, at the close of its evidence, to identify the two offenses relied upon. One other question requires attention at this time. The court sentenced defendant under sec. 316 of the Federal Penal — 202 — Code [35 Stat. at L. 1149, chap. 321, Comp. Stat. 1916, sec. 10,489] to serve a period of three years in the penitentiary. Defendant contends that sec. 874 of the District Code [31 Stat. at L. 1332, chap. 854] applied, under which he might have been fined not to exceed $500, or imprisoned not exceeding one year, or both. In Johnson v. United States, 38 App. D. C. 347, 225 U. S. 405, 56 L. ed. 1142, 32 Sup. Ct. Rep. 748, it was ruled that the two Codes, having definite territorial operation, may subsist together; that the Federal Code embraces general legislation of general operation, while the District Code embraces local legislation of local operation; and that an intent to affect or repeal the latter by the enactment of the former must clearly appeal*, and will not be implied. Chapter 13 of the Federal Code, in which appears sec. 316, ordains that “except as otherwise expressly provided,” the offenses defined in the chapter shall be punished as thereinafter provided. Having in mind what was ruled in the Johnson Case, we are of the view that the quoted words embrace, and were intended to embrace, see. 874 of our Code. As pointed out in that case by both courts, apparently every prior enactment of Congress that in any way conflicted with the provisions of the Federal Code was in terms repealed. Section 874 was not mentioned in the repealed provisions. Moreover, since every section in chapter 13 of the Federal Code provides punishment for violation of its provisions, the phrase quoted is meaningless unless given the interpretation we have placed upon it. We think it should be given that interpretation. There are other assignments of error, but, since they relate to questions that are not likely to arise at another trial, we do not notice them here. Judgment reversed and cause remanded for a new trial. Reversed.