Where the accused contends in the District Court of the United
States for the District of Porto Rico that, under the provisions of
the Foraker Act of April 12, 1900, 31 Stat. 77, the qualifications
of the grand jurors by whom he was indicted should have been
controlled by the local law of January 31, 1901, and the court
decides adversely, a right is claimed under a statute of the United
States and denied, and under § 35 of the Foraker Act, this Court
has jurisdiction on writ of error to review the judgment. Under § §
14 and 34 of the Foraker Act, providing that the District Court of
the United States for the District of Porto Rico shall have
jurisdiction in all cases cognizant in the Circuit Courts of the
United States and shall proceed therein in the same manner as a
Circuit Court, the provisions of § 800, Rev.Stat., apply to
criminal prosecutions, and the court must recognize any valid
existing local statute as to the qualification of jurors in the
same manner as a Circuit Court of the United States is controlled
in criminal prosecutions by the applicable statute of the state in
which it is sitting.
The disqualification of a grand juror prescribed by statute is a
matter of substance which cannot be regarded as a mere defect or
imperfection within the meaning of § 1025, Rev.Stat.
Page 194 U. S. 462
After April 1, 1901, there was a local statute in Porto Rico
regulating the qualifications of jurors, and the presence of
persons on the grand jury of the District Court of the United
States for the District of Porto Rico disqualified under that act
and who were summoned to serve after the act took effect vitiates
the indictment when the facts are seasonably brought to the
attention of the court.
An objection by pleas in abatement, and before arraignment of
the accused, to an indictment on the ground that some of the grand
jurors were disqualified by law was in due time, and was made in a
proper way.
Quaere, and not decided, whether the presence of jurors
disqualified by the act, but summoned before it took effect, would
affect an indictment found after the act took effect.
The plaintiff in error was indicted in the District Court of the
United States for the District of Porto Rico, as constituted by the
act of Congress of April 12, 1900, entitled "An Act Temporarily to
Provide Revenues and a Civil government for Porto Rico, and for
Other Purposes." 31 Stat. 85, c. 191.
The indictment was based upon certain sections of the Revised
Statutes of the United States relating to crimes committed by
persons employed in the postal service. Rev.Stat. §§ 5467, 5468,
and 5469. The punishment for the offense here charged was
imprisonment at hard labor for one year, and not exceeding five
years.
After the return of the indictment, the accused filed a plea in
abatement which questioned the competency of certain jurors who
participated in the finding of the indictment.
As the action of the court on that plea constitutes the
controlling question in the case, the plea is given in full, as
follows:
"Now comes the defendant, Harold Crowley, and pleads in
abatement to the indictment returned herein, and says that, on
Monday, the 8th day of April, 1901, there appeared in this court at
San Juan, it being the first day of said term, the following-named
persons: Manuel Romero Haxthausen, Pedro Fernandez, Alex. Nones,
John D. H. Luce, Antonio Blanco, Manuel Andino Pacheco, E. L.
Arnold, Henry v. Dooley, J. Ramon Latimer, Miguel Olmedo, Ramon
Gandie, Charles H. Post, numbering twelve in all, which said
persons were then and there, by the direction of the court and the
marshal,
Page 194 U. S. 463
placed in the jury box, to constitute the panel for the grand
jury of this said April term, 1901, of this Court."
"Whereupon the court then ordered the marshal to summon other
persons to fill up the panel of the said grand jury, and
immediately the marshal of the court sent his deputy out of the
court room and into the City of San Juan to summon other jurors for
such grand jury. Within a few minutes thereafter, the marshal
brought into court Frank Antonsanti (returned as Antonio Santi and
Frank Santi, as appears by the minutes of this Court), Hugo Stern,
and William Bowen, the said persons not having been then and there
bystanders in the court. The said panel then being incomplete, the
marshal placed W. H. Holt, Jr., in the box, he being at the time a
bystander in said court."
"Defendant says that thereupon the grand jury was constituted
from the persons above named, and, after being sworn, proceeded to
render a true bill against the defendant, which said alleged true
bill on indictment was, by the said grand jury, constituted as
aforesaid, returned and presented to this Court on Wednesday, April
tenth, 1901."
"Defendant says that, by an act of the Legislative Assembly of
Porto Rico, which took effect January 31, 1901, it was provided (§
3) that jurors shall have the following qualifications, among
others:"
"1st. A male citizen of the United States or of Porto Rico, of
the age of twenty-one years, and not more than sixty years, who
shall have been a resident of the island one year, and of the
district or county ninety days before being selected and
returned."
"4th. Assessed on the last assessment roll of the district or
county on property of the value of at least two hundred dollars,
belonging to him."
"SEC. 4. A person is not competent to act as a juror (1st) who
does not possess the qualifications prescribed by the preceding
section -- which said provisions were in full force and effect at
and before the time that all of the persons were summoned
Page 194 U. S. 464
and impaneled, and returned said indictment as aforesaid."
"That by the law of Porto Rico, as aforesaid, causes of
challenge to jurors are and were at said time last above mentioned,
a want of any of the qualifications prescribed by law to render a
person a competent juror. Defendant [states] that Manuel Adino is,
and was at the time above mentioned, a citizen of the Republic of
Venezuela. That W. H. Holt, Jr., has not been a citizen of Porto
Rico for one year prior to the dates and time above mentioned when
said jury was so summoned, impaneled, and returned, and when said
alleged indictment was returned."
"Defendant says that at the same time last above mentioned the
following persons, composing and constituting the said grand jury,
were not assessed on the last assessment roll of any of the
districts of Porto Rico on property of the value of $200, belonging
to him: Antonio Blanco, Manuel Andino Pacheco, Miguel Olmedo,
Charles H.
Post Frank Antonsanti, or Frank Santi, or
Antonio Santi, W. H. Holt, Jr., William Bowen."
"Defendant further says that the following persons, composing
and constituting said grand jury, were not at the time above
mentioned, publicly drawn from the box, containing at the time of
each drawing the names of not less than three hundred persons,
possessing the qualifications prescribed in section 800 of the
Revised Statutes, and which said names (hereinafter set out) had
not been placed therein by the clerk of this court and a jury
commissioner, as provided by Act of June 30, 1879."
"Such persons whose names were not in said box and selected and
summoned in the manner as aforesaid at the dates and times
aforesaid were Hugo Stern, W. H. Holt, Jr., Frank Antonsanti, alias
Frank Santi,
alias Antonio Santi, William Bowen."
"Defendant says that no writs of
venire facias were
directed by the court against the said last above named persons
from
Page 194 U. S. 465
the clerk's office, signed by the clerk or his deputy, nor
returned in the manner provided by Revised Statutes, § 803.
Defendant says that he was not present in court at the time of the
selection, summoning, and impaneling of the jury aforesaid, and has
had no opportunity to make any challenges to the same as the
members thereof, because he did not know of said action, and was
not at the time represented by counsel, but that he has this day
learned of the aforesaid acts for the first time, and therefore
immediately presents this plea."
"Defendant says that he has been and would be greatly prejudiced
by the improper and illegal selection and impaneling of such grand
jury as aforesaid, as it was composed at the time aforesaid of
persons disqualified to act, and who were not residents or
taxpayers of Porto Rico, as required by law, and because of their
unfamiliarities with the island and the conditions and
circumstances, material matters in this case, and relevant thereto,
some of said jurors as aforesaid having been but a few months in
the island, and temporarily sojourning herein."
"In addition to W. H. Holt, Jr., and William Baun, the following
gentlemen of the grand jury were American citizens: John D. H.
Luce, E. L. Arnold, Henry W. Dooly, J. Ramon Latimer, foreman
thereof, Charles H. Post, Frank Antonsanti; by reason of which and
their supposed knowledge of such practices by grand juries in the
courts of the United States, might, and, as defendant believes,
did, contend the deliberations of said jury so as to induce a
finding of indictment where the Porto Rican citizens thereof might
not have otherwise done."
The United States demurred to the plea upon the ground that the
matters set forth in it, so far as they controlled or were
applicable to the summoning and impaneling of a grand jury in the
court below, disclosed no illegality therein, and constituted no
reason why the accused should not be required to plead to the
indictment.
The demurrer to the plea was sustained, and the plea overruled.
The defendant then demurred to the indictment, and, the demurrer
being overruled, he pleaded to the jurisdiction
Page 194 U. S. 466
of the court upon the ground that it had no authority to proceed
at its then special term, but could only proceed at a regular term.
That plea was also overruled. The accused was then arraigned and
pleaded not guilty, and a trial was had, resulting in a verdict of
guilty, and a sentence to four years' imprisonment in the
penitentiary.
MR. JUSTICE HARLAN delivered the opinion of the Court.
The first question is one of the jurisdiction of this Court; the
government insisting that, under existing statutes, we are without
authority to review the judgment in this case.
By the 35th section of the Foraker Act of April 12, 1900, 31
Stat. 85, c. 191, it is provided, among other things, that writs of
error and appeals to this Court from the final decisions of the
district court of the United States shall be allowed in all cases
where "an act of Congress is brought in question, and the right
claimed thereunder is denied." In this case, that act was brought
in question by the contention of the parties -- the contention of
the accused being, in substance, that, pursuant to that act of
Congress, the court below, in the matter of the qualifications of
grand jurors, should have been controlled by the provisions of the
local law relating to jurors, in connection with the statutes of
the United States relating to the organization of grand juries, and
the trial and disposition of criminal causes, and the court below
deciding that, notwithstanding the Foraker Act, the local Act of
January 31, 1901 referred to in the plea, was not applicable to
this prosecution, and that the grand jury finding the indictment,
if a grand jury was necessary, was organized consistently with the
laws of the United States under which the court proceeded. It
Page 194 U. S. 467
thus appears that the accused claimed a right under the act of
Congress and under the Revised Statutes of the United States which,
it is alleged, was denied to him in the court below. This Court has
therefore jurisdiction to inquire whether there is anything of
substance in that claim.
The question presented by the opposing views of the parties is
not free from difficulty. By section 14 of the Foraker Act it is
provided that the statutory laws of the United States, not locally
inapplicable, except as otherwise provided, shall have the same
force and effect in Porto Rico as in the United States. § 14. And
by section 34, it is provided that, in addition to the ordinary
jurisdiction of district courts of the United States, the District
Court of the United States for Porto Rico shall have jurisdiction
"in all cases cognizant in the circuit courts of the United States,
and shall proceed therein in the same manner as a circuit court." §
34.
Turning to the statutes of the United States, we find that
"jurors to serve in the courts of the United States, in each state
respectively, shall have the same qualifications" (subject to
certain provisions and exceptions not material to be mentioned
here)
"as jurors of the highest court of law in that state may have
and be entitled to
at the time when such jurors for
service in the courts of the United States
are
summoned."
§ 800.
Taking these statutory provisions all together, and having
regard to the general scope of the Foraker Act, it is manifest that
Congress intended that criminal prosecutions in the District Court
of the United States in Porto Rico for offenses against the United
States should be conducted in the same manner as like prosecutions
in the circuit courts of the United States, the court in Porto Rico
recognizing any valid existing local statute relating to the
qualifications for jurors, just as a circuit court of the United
States, in criminal prosecutions, would be controlled (Rev.Stat. §
800) in respect of the qualifications of jurors, by the applicable
statutes of the state in which it was sitting.
Page 194 U. S. 468
So that we must inquire whether there was in existence any local
statute relating to the qualifications of jurors by which the court
below should have been controlled.
The plea in abatement, referring to certain provisions in a
statute of Porto Rico prescribing the qualifications of jurors,
states that it took effect January 31, 1901. That is a mistake. It
is true that the statute was passed on that day, but it did not
take effect until April 1, 1901. Rev.Stat. & Codes of Porto
Rico, 1902, pp. 172, 210, § 160.
The plea correctly states that, by that statute -- the authority
of the legislature of Porto Rico to pass it not being questioned --
it was provided that a person was not competent to act as a juror
who was not a male citizen of the United States or of Porto Rico,
of the age of twenty-one years, and not more than sixty years; who
had not been a resident of the island one year and of the district
or county ninety days before being selected and returned, or who
was not assessed on the last assessment roll of the district or
county on property of the value of at least two hundred dollars
belonging to him. § 3.
In a brief opinion, made part of the record, the court below
referred to the date on which the local statute took effect --
April 1, 1901 -- and stated that the record showed that the venire
of grand jurors for the term was executed and the jurors summoned
prior to that date. This must be construed as applying only to
those jurors who were summoned under the regular venire, for it is
distinctly shown by the record that the court convened April 8,
1901, after the local statute went into effect, and that, of those
participating in the finding of the indictment, four -- Antonsanti,
Stern, Bowen, and Holt -- were summoned by the marshal after that
date, under the order of the court, to complete the panel of the
grand jury. And the demurrer to the plea admits that Antonsanti,
Bowen, and Holt were of those thus specially summoned after the
court convened, and were not, when selected as jurors, assessed on
the last assessment as owners of property of the required value,
and that Holt had not been a resident of the island for one
Page 194 U. S. 469
year prior to his being summoned to serve on the grand jury. It
thus appears that, after the local statute took effect, three
persons were summoned by the marshal and put on the grand jury who
were disqualified by that statute to serve. We perceive no reason
why the District Court of the United States for Porto Rico should
not have followed that statute when organizing the grand jury. It
was then the law of Porto Rico. There was no difficulty in applying
its provisions prescribing the qualifications of jurors to pending
criminal prosecutions in the court below. One of the functions of
that court was to enforce the laws of Porto Rico. If the court had
given effect to the above act, and held those to be disqualified as
jurors who were declared by its provisions to be incompetent, then
it would have proceeded -- as it was required by the Revised
Statutes of the United States and by the Foraker Act to proceed --
"in the same manner as a circuit court" of the United States,
sitting in a state, would proceed under the law of such state
prescribing the qualifications of jurors. But it did not proceed in
that manner. It refused to follow the local statute.
It remains now to inquire whether the objection to the jurors
above named was taken in the proper way, and in due time. Can such
an objection be made, as was done here, by plea in abatement after
the return of the indictment? Upon this point the authorities are
not in harmony. The question is not controlled by any statute, and
must depend on principles of general law applicable to criminal
proceedings in civilized countries.
Some of the cases have gone so far as to hold that an objection
to the personal qualifications of grand jurors is not available for
the accused unless made before the indictment is returned in court.
Such a rule would, in many cases, operate to deny altogether the
right of an accused to question the qualifications of those who
found the indictment against him, for he may not know, indeed, is
not entitled of right to know, that his acts are the subject of
examination by the
Page 194 U. S. 470
grand jury. In
Commonwealth v. Smith, 9 Mass. 107, 109,
a case often referred to, the court said that "objections to the
personal qualifications of the jurors or to the legality of the
returns are to be made before the indictment is found." But the
court took care to observe that the decision was not rested on that
ground. And in the later case of
Commonwealth v. Parker, 2
Pick. 550, 563, Chief Justice Parker, referring to
Commonwealth
v. Smith, remarked:
"It is there said that objections to the personal qualifications
of the grand jurors, or to the legality of the returns, are to be
made before the indictment is found. It is not necessary to apply
the remark here, and we have some doubts as to the correctness of
it in all cases, and the case in which it was made was determined
on another point."
One of the earliest cases in this country in which the question
arose was that of
Commonwealth v. Cherry, 2 Va.Cas. 20,
decided in 1815. It was then held that, if a grand juror was
disqualified, the indictment or presentment, after being found,
could be avoided by plea in abatement.
With rare exceptions, this rule is recognized and followed in
the different states. It will be appropriate to refer to some of
the cases.
In
State v. Symonds, 36 Me. 128, 132, an objection that
the indictment was not found by the required number of legal grand
jurors being taken on motion in writing, in the nature of a plea of
abatement at the arraignment of the accused, was held to be in
season and available. Later, in
State v. Carver, 49 Me.
588, 594, it was said that objections to the competency of grand
jurors by whom an indictment was found came too late if made after
verdict, but must be pleaded in abatement.
See also State v.
Clough, 49 Me. 577. In
State v. Herndon, 5 Blackf.
75, it was ruled that, if a grand juror was disqualified for any
reason, the accused may, before issue joined, plead the objection
in avoidance. In
Doyle v. State, 17 Ohio, 222, an
objection, by special plea, that one of the grand jurors by whom
the indictment was found was disqualified
Page 194 U. S. 471
to act, was held not to come too late, the court saying that
"no objection can come too late which discloses the fact that a
person has been put to answer a crime in a mode violating his legal
and constitutional rights."
In
McQuillen v. State, 8 S.S. & M. 587, 598, the
High Court of Errors and Appeals of Mississippi fully considered
the question. Chief Justice Sharkey, delivering the judgment of the
court, after observing that no one can be called to answer a charge
against him unless it has been preferred according to the forms of
law, and that anyone indicted by a grand jury can deny their power,
said:
"The question is, how is this to be done? A prisoner who is in
court, and against whom an indictment is about to be preferred, may
undoubtedly challenge for cause; this is not questioned. But the
grand jury may find an indictment against a person who is not in
court; how is he to avail himself of a defective organization of
the grand jury? If he cannot do it by plea, he cannot do it in any
way, and the law works unequally by allowing one class of persons
to object to the competency of the grand jury, whilst another class
has no such privilege. This cannot be. The law furnishes the same
security to all, and the same principle which gives to a prisoner
in court the right to challenge gives to one who is not in court
the right to accomplish the same end by plea, and the current of
authorities sustains such a plea. True, some may be found the other
way, but it is believed that a large majority of the decisions are
in favor of the plea. To the list of authorities cited by counsel
may be added the name of Sir Matthew Hale, which would seem to be
sufficient to put the question at rest. 2 Hale's Pleas of the Drown
155.
Vide also Withipole's Case, Cro.Car. 134, 147."
See also Rawls v. State, 8 S. & M. 609.
The same court, in a later case, sustaining the right of accused
to challenge, by plea in abatement, the competency of the grand
jury by which he is indicted, said:
"This privilege arises not alone from the legal principles, that
indictments not found by twelve good and lawful men at the least
are void and
Page 194 U. S. 472
erroneous at common law, and therefore some mode must be left
open for ascertaining the fact, but is well sustained as a method
of insuring to accused persons a fair and impartial trial. Such
persons are not present when the grand jurors are impaneled,
perhaps have not been made subjects of complaint or even suspicion.
It certainly would not be right to estop a party from pleading a
matter to which he could not otherwise except. The interest of an
accused person under indictment with the grand jury commences at
the time of the finding of the indictment. This is the point of
time when, as to him, the legal number of qualified men must exist
upon the grand inquest. Indictments not found by at least twelve
good and lawful men are void at common law. Cro.Eliz. 654; 2 Burr.
1088, 2 Hawk P.C. 307. It is said by 2 Hawkins, P.C.B. 2, c. 25,
sec. 28, that, if any one of the grand jury, who find an
indictment, be within any one of the exceptions in the statute, he
vitiates the whole, though ever so many unexceptional persons
joined with him in finding it."
Barney v. State, 12 S. & M. 68, 72.
In
State v. Seaborn, 15 4 Dev. 305, 311, and again in
State v. Martin, 2 Iredell 101, 120, the Supreme Court of
North Carolina, speaking in each case by Chief Justice Ruffin, held
that a plea in abatement, filed at the time of arraignment, was an
appropriate mode of raising the question of the validity of an
indictment as affected by the disqualification of a grand
juror.
A leading case upon the question is
Vanhook v. State,
12 Tex. 252, 268. The court there said:
"The better opinion, to be deduced from the authorities to which
we have access, seems to be that irregularities in selecting and
impaneling a grand jury, which do not relate to the competency of
individual jurors, can, in general, only be objected by a challenge
to the array. But that the incompetency, or want of the requisite
qualifications, of the jurors, may be pleaded in abatement to the
indictment. And this doctrine and distinction
Page 194 U. S. 473
seems founded on principle. It is the right of the accused to
have the question of his guilt decided by two competent juries
before he is condemned to punishment. It is his right, in the first
place, to have the accusation passed upon, before he can be called
upon to answer to the charge of crime, by a grand jury composed of
good and lawful men. If the jury be not composed of such men as
possess the requisite qualifications, he ought not to be put upon
his trial upon a charge preferred by them, but should be permitted
to plead their incompetency to prefer the charge and put him upon
his trial, in avoidance of the indictment. Otherwise, he may be
compelled to answer to a criminal charge preferred by men who are
infamous, or unworthy to be his accusers."
In
State v. Duncan and Trott, 7 Yerger 271, 275, the
accused pleaded in abatement that one of the grand jurors who
participated in the finding of the indictment was disqualified. The
Supreme Court of Tennessee, speaking by Chief Justice Catron,
afterwards a member of this Court, said:
"Suppose an indictment was found by a grand jury, no person
composing which was qualified? All will admit the indictment would
be merely void in fact and ought not to be answered if the fact was
made legally to appear. So, if any one be incompetent, it is
equally void, because the proper number to constitute the grand
inquest is wanting, and because he who is incompetent shall not be
one of the triers of the offense at any stage of the prosecution.
There seems at some early stage of the proceeding by indictment, to
have been some doubt whether the indictment was void because of the
incompetency of one of the grand jurors, to set which at rest the 2
Henry IV., c. 9, enacted 'that any indictment taken by a jury, one
of whom is unqualified, shall be altogether void and of no effect.'
See also Mann v. Fairlee, 44 Vt. 672;
State v.
Williams, 3 Stew. 454;
State v. Bryant, 10 Yerg. 527;
State v. Cole, 17 Wis. 674;
State v. Brooks, 9
Ala. 10;
Jackson v. State, 11 Tex. 261;
State v.
Freeman, 6 Blackf. 248; 1 Bishop, Cr.Pro. § 883, and
authorities cited; 1 Amer.Cr.Law, § 472,
Page 194 U. S. 474
and authorities cited; 1 Chitty, Crim.Law, 307; 1 Bacon's
Abridg. Indictment, C. Bouvier's ed. p. 53; 2 Hale 155; 3 Inst. 34;
2 Hawk. c. 35, §§ 18, 26, 29, 30."
We are of opinion that the objection here that grand jurors were
disqualified by the statute of Porto Rico was made in the proper
way and in due time. The accused was not in court when the grand
jurors were selected and the grand jury impaneled. So far as
appears from the record, he was not aware that his case would be
taken up by the grand jury. It does not appear he had, prior to the
assembling of the grand jury, been arrested for the offenses for
which he was indicted. But upon the return of the indictment, he
was brought to the bar of the court, and gave bond for his
appearance and trial. His objection to the qualifications of the
grand jurors was made promptly -- days after the indictment was
returned -- before he was arraigned, and as soon as he learned of
the facts upon which the objection was based. All this was admitted
by the demurrer to the plea in abatement. If the objection in this
case was not sufficient, then an objection made by plea in
abatement prior to arraignment, that a majority or even all of the
grand jurors returning an indictment against the accused were
disqualified by law, would have been equally unavailing. Such a
result is not to be thought of.
In this connection, the government calls attention to § 1025 of
the Revised Statutes, providing that
"No indictment found and presented by a grand jury in any
district or circuit or other court of the United States shall be
deemed insufficient, nor shall the trial, judgment, or other
proceeding thereon be affected by reason of any defect or
imperfection in matter of form only, which shall not tend to the
prejudice of the defendant."
This section can have no bearing on the present case, for the
disqualification of a grand juror is prescribed by statute, and
cannot be regarded as a mere defect or imperfection in form; it is
matter of substance, which cannot be disregarded without prejudice
to an accused.
It is said that, under the Spanish law prior to the cession
Page 194 U. S. 475
of Porto Rico, indictments and grand juries were unknown; that
it was allowable under the law to proceed against an accused by a
criminal information, and that the Legislative Assembly of Porto
Rico had not made any alteration of the Spanish law in this
particular when the grand jurors in this case were summoned. The
contention in this view is that the indictment in question, having
been signed by the United States attorney, can be treated as an
information. The indictment embodies charges made by grand jurors,
and the signature of the United States attorney merely attests the
action of the grand jury, whereas an information rests upon the
responsibility of the attorney representing the government, and
imports an investigation of the facts by him in his official
capacity. But, apart from these considerations, we cannot treat the
indictment as an information, for the reason, if there were no
other, that, as the defendant was accused of an infamous crime
against the United States, this prosecution could not have been
commenced in a circuit court of the United States except on
presentment or indictment of a grand jury, and the positive command
of the act of Congress relating to the District Court of the United
States for Porto Rico that the court below "shall proceed in the
same manner as a circuit court" of the United States, precluded the
prosecution of the accused in the latter court except by
presentment or indictment.
We have seen that some of the grand jurors alleged in the plea
of abatement to be disqualified were summoned prior to the date on
which the local statute went into effect, and if the local statute
were applied to them, they would have been held incompetent to act
as jurors. But there is some ground to hold, under section 800 of
the Revised Statutes of the United States, that if they were
qualified when summoned, then they did not become disqualified by
reason of anything in the local statute which went into operation
after they were summoned. By what law the qualifications of those
particular jurors were to be tested we need not determine, for what
has been said
Page 194 U. S. 476
as to disqualified jurors summoned after the court convened, and
after the local statute went into operation, and who were
nevertheless permitted to participate in the finding of the
indictment, is sufficient to dispose of the case.
For the reasons stated, and without considering other questions
arising upon the plea in abatement as well as upon the record, we
adjudge only that the presence on the grand jury of persons
summoned after the local statute took effect, and who were
disqualified by that statute, those facts having been seasonably
brought to the attention of the court by a plea in abatement filed
before arraignment, vitiated the indictment.
The judgment is reversed, and the case is remanded with
directions to overrule the demurrer to the plea in abatement, and
for such further proceedings as may be consistent with
law.
Reversed.
MR. JUSTICE McKENNA concurs in result.
MR. JUSTICE WHITE dissents.
