Lewis v. United States (146 U.S. 370)/Dissent Brewer

by David Josiah Brewer

Mr. Justice Brewer, dissenting.

I dissent from the opinion and judgment of the court in this case. Where the question is as to the inferences to be drawn from a record, it is well to have its very language before us. The entire record bearing upon the matters in controversy consists of a single journal entry and a portion of the bill of exceptions. The journal entry is as follows:

"Tuesday Morning, October 20th, 1891.

"(Caption omitted.)

"On this day come the United States of America, by Wm. H. H. Clayton, Esq., attorney for the western district of Arkansas, and come the said defendant in custody of the marshal and by his attorneys, Mess. Barnes & Reed, and it appearing from the returns of the marshal that the said defendant has been served with a duly-certified copy of the indictment in this cause, and a full and complete list of the witnesses in this cause, and that he has also been served with a full and complete list of the petit jury, as selected and drawn by the jury commissioners for the present term of this court, more than two entire days heretofore, and having heretofore had hearing of said indictment, and pleaded not guilty thereto, it is, on motion of the plaintiff by its attorney, ordered that a jury come to try the issue joined, whereupon the clerk called the entire panel of the petit jury, and, after challenge by both plaintiff and defendant, the following were selected for the trial of this cause:

"Geo. A. Bryant, John W. Clayborn, Henry P. Dooly, James O. Eubanks, John A. Fisher, Henry P. Floyd, Geo. W. Hobbs, Hugh F. Mullen Jno. D. McCleary, Obadiah C. Richmond, [p381] Joseph Stafford, Henry B. Wheeler,—twelve good and lawful men of the district aforesaid, duly selected, impaneled, and sworn to try the issue joined, and a true verdict render according to the law and the evidence; and, after hearing a portion of the evidence, and there not being time to further progress in the trial of this cause, they were put in charge of a sworn bailiff of this court."

The recital in the bill of exceptions is in these words:

"Be it remembered that on the trial of the above-entitled cause the court directed two lists of 37 qualified jurymen to be made out by the clerk, and one given to the district attorney and one to the counsel for the defendant; and the court further directed each side to proceed with its challenges independent of the other, and without knowledge on the part of either as to what challenges had been made by the other.

"To which method of proceeding in that regard defendant at the time excepted, but was required to proceed to make his challenges, and he challenged 20 persons from the list of 37 persons, from which he made his challenges, but in doing so he challenged 3 jurors who were also challenged by the attorney for the government, to wit, James H. Hamilton, Britton Upchurch, and James P. Mack. The government, by its district attorney, challenged from the list of 37 jurors 5 persons. In making its challenges the same three persons as those challenged by the defendant, to wit, James H. Hamilton, Britton Upchurch, and James P. Mack, were challenged by the government, as appears from the lists of jurors used by the government in making its challenges and the defendant in making his challenges.

"The 12 persons who were left of the panel of 37, after both sides had made their respective challenges, were the ones selected to try, and who did try, the case.

"To the happening of the fact that both parties challenged the same three jurors, the defendant at the time objected, but the court overruled the objection, and directed the jury to be called from the said two lists, impaneled and sworn, to which the defendant at the time excepted."

[p382] In addition, in the bill of exceptions are found the two lists of jurors, given the one to the government and the other to the defendant. Upon this record the case turns. We look to the journal entry for a recital of the facts necessary to constitute a legal trial. That recital may be in general terms, but still should affirmatively show everything essential to a valid criminal trial. This journal entry clearly affirms the presence of the defendant. The language is: "Come the said defendant in custody of the marshal," etc. Such presence, having been once stated, will be presumed to have continued through the entire day, unless the contrary is shown. It never has been even suggested that the journal should contain at the statement of each separate proceeding of the day a fresh recital of the personal presence of the defendant. In Jeffries v. The Commonwealth, 12 Allen, 145, 154, it was said: "Nor is it necessary that the record should in direct terms state that the party was personally present at the time of the rendition of the verdict and during all the previous proceedings of the trial. However necessary it may be that such should have been the fact, it is not necessary to recite it in the record. The record shows that he was present at the arraignment, and present to receive his sentence." "When the record shows that the defendant was in court at the opening of the session the presumption is that he continued in court during the entire day, and this presumption has been extended to the whole trial." Wharton's Cr. Pl. & Pr. § 551; State v. Lewis, 69 Missouri, 92; Kie v. United States, 27 Fed. Rep. 351; Cluverius v. Commonwealth, 81 Virginia, 787; Folden v. State, 13 Nebraska, 328; Irvin v. State, 19 Florida, 872; People v. Sing Lum, 61 California, 538; People v. Jung Qung Sing, 70 California, 469; New Mexico v. Yarberry, 2 New Mexico, 391. No claim, therefore, can be successfully presented that anything transpiring on that day took place in the absence of the defendant.

The same journal entry further recites that "the clerk called the entire panel of the petit jury, and, after challenge by both plaintiff and defendant," the jury was selected. Where the general term is used, as here, "challenge," it means [p383] all challenges. It is used in its comprehensive sense. It is unnecessary to subdivide, and say, after challenge to the array, challenges for cause, and peremptory challenges; the single general word is sufficient. But this journal entry does not stop with this. After naming the jurors, and describing them as good and lawful men, it adds, "duly selected, impaneled, and sworn." Such will be found the uniform formula of journal entries. In Kie v. United States, 27 Fed. Rep. 351, 357, a case taken on error to the circuit court, Judge Deady observes: "The record simply states in the usual way, when the case was called for trial, a jury came, a and was duly impaneled and sworn." Potsdamer v. State, 17 Florida, 895; Rash v. The State, 61 Alabama, 89. In Wharton's Criminal Pleading and Practice, sec. 779a, (9th ed.) the author says: "Thus, when the record shows impaneling and swearing, it will be presumed, in error, that the swearing was in conformity with the law, and the impaneling was regular." It is hardly necessary to refer to the familiar fact that in criminal, as in civil, cases the presumption is in favor of the regularity of the proceedings in the trial court, and that error must affirmatively appear. Powell on Appellate Proceedings, p. 326, sec. 50; Wharton's Cr. Pleading and Practice, sec. 779a, (9th ed.) and cases cited in note. I take it, therefore, that it is not open to doubt that, if nothing was before us except the journal entry, there would be no error apparent in the proceedings in regard to the jury.

How does the matter stand from the bill of exceptions? A bill of exceptions is prepared by the party, and, being prepared by him, he may state, and ought to state, only those facts which present the very question he desires to raise. If the objection is to a ruling on the admission of testimony, he should state only that testimony and enough of the case to show its relevancy. It would be absurd to require him to set out all the testimony, or to state in terms that there was no objection to the balance. As was said in Lincoln v. Claflin, 7 Wall. 132, 136; "A bill of exceptions should only present the rulings of the court upon some matter of law,—as upon the admission or exclusion of evidence,—and should contain only [p384] so much of the testimony, or such a statement of the proofs made or offered, as may be necessary to explain the bearing of the rulings upon the issues invoved." If he objects to a specific portion of a charge, he should state only that portion. Putting in the whole charge is clearly against rule 4 of this court, and has been explicitly condemned. United States v. Rindskopf, 105 U.S. 418. Indeed, the single function of a bill of exceptions is to bring upon the record so much of the proceedings as will disclose the precise question which the party desires to have ruled upon, and when prepared by counsel and presented to the court, if it states the facts truly, the judge ought to sign it; and it is unnecessary for it to set forth affirmatively that there was no other error in the proceedings, or to state all the facts of the case, in order to disclose that there was no other error. Bearing in mind this, which is confessedly the scope and purpose of a bill of exceptions, I notice that in this bill not a word is said about the absence of the jurors from the box, the personal presence or absence of the defendant, or whether the defendant was brought face to face with the jurors. If he had any fault to find in respect to these matters, the facts in respect thereto should have been explicitly stated. That he made no claim of wrong therein is evident from the fact that he does not mention them. Examining the language of the bill of exceptions carefully, it states that two lists were given,—one to plaintiff and one to defendant; and the court directed them to proceed with their challenges, each separately of the other, and without knowledge of what challenges were being made by the other. There follows the exception, "to which method of proceeding in that regard defendant at the time excepted." I respectfully submit that language could not be used which makes clearer the fact that the objection ran alone to the fact that each party was required to make its challenges independently of the other, and without knowledge of what the other was doing. It is not simply said, "to which method of proceeding," but, as if to limit carefully to the particular matter, it says, "to which method of proceeding in that regard;" and at the close of the recitals it is further stated, "to the happening [p385] of the fact that both parties challenged the same three jurors the defendant at the time objected." This is all which in any way tends to show that there was anything wrong in the matter of challenges, or that anything took place in the absence of the defendant.

Again, if the defendant has taken no exceptions to these proceedings, it is settled that this court would not inquire as to whether there was error in them. In Alexander v. United States, 138 U.S. 353, a case coming from the same district, the precise state of facts in respect to the impaneling of the jury appeared, but without any exceptions. The response made by the court to the assignment of error was in these words: "The decisive answer to this assignment is that the attention of the court does not seem to have been called to it until after the conviction, when the defendant made it a ground of his motion for a new trial. It is the duty of counsel seasonably to call the attention of the court to any error in impaneling the jury, in admitting testimony, or in any other proceeding during the trial, by which his rights are prejudiced, and, in case of an adverse ruling, to note an exception." Of course, then, if the matters are not vital to the trial, and may be waived by failure to object, as thus decided, clearly the defendant can take advantage of nothing to which he does not except. Hence, supposing that after the foregoing recital in the bill of exceptions there had appeared further recitals showing various irregularities in respect to the challenges, sufficient of themselves, if excepted to, to compel reversal, but with no following exception, clearly, under the rule laid down in Alexander v. The United States, we should have been compelled to ignore them. Surely, then, when the exception runs to a specific matter, it cannot be broadened so as to extend to a matter which is confessedly not stated, but is only inferred as probable from what is stated. In short, when the journal entry, which is of itself a part of the record, and which is the court's statement of what took place, recites the personal presence of the defendant, and the full exercise of the right of challenge, in language which is the ordinary formula of journal entries, and which has been uniformly regarded as [p386] sufficient to infer from the bill of exceptions prepared by the defendant, whose purpose is only to present the facts bearing upon the particular error alleged by him, and which only specifies in terms a single act to which exception is taken, to wit, the fact that plaintiff and defendant were compelled to challenge peremptorily, without knowledge of the other's challenges, that any challenges took place in the absence of the defendant, to hold that an exception which is precise to a particular matter can be broadened so as to include other matters not specified, and thereupon to set aside a judgment of guilty, solemnly rendered, seems to me to overturn established rules governing appellate proceedings, to destroy confidence in courts, and to work great wrong to the public.

Further than this, in the brief of counsel for the defendant there is no claim that the jury were not present in the box, face to face with the defendant, when he was called upon to make his challenges. The only points they make in respect to the matter are that the mode of designating the jury was not recognized by the statutes of the state of Arkansas, nor in conformity with any rule prescribed by congress; and that, by reason of the fact that three jurors were challenged by both the government and defendant, the latter was really deprived of three peremptory challenges.

Now, if it should prove to be the case—as, it seems to me, is not only possible, but probable—that the defendant was in fact present in the court room during all the challenges; that the entire panel of jurors was called into the box before him; that in their presence he was allowed and received all the challenges for cause he desired to make; and that only after a full inspection of the jury, and a questioning of each one so far as was desired, were the lists placed in the hands of the respective counsel for peremptory challenges, will not the ordinary citizen believe that substantial justice would have been done if this court had omitted to read into the record something which is not expressly stated therein, which defendant's counsel did not claim to have happened, and which did not in fact happen?

So far as respects the matter of contemporaneous challenging, [p387] at common law, and generally where no order is prescribed by statute, the defendant is required to make all his challenges before the government is called upon for any. In that aspect of the law, contemporaneous challenging works to the injury of the government, rather than to that of the defendant. Further, in the only case in which the precise question has been presented, State v. Hays, 23 Missouri, 287, cited approvingly approvingly in Turpin v. The State, 55 Maryland, 462, the decision was in favor of the validity of such manner of challenge. In view of the discretion which, in the absence of statute, is confessedly vested in the trial court as to the manner of challenges, there was no error in this sufficient to justify a new trial.

I am authorized to say that Mr. Justice Brown also dissents.