Possible error in overruling a challenge for cause in this case
was not prejudicial in view of the number of peremptory challenge
allowed to, and their use by, the accused and the absence of any
indication that the jury was not impartial. The former decision,
ante, 251 U. S. 15
reexamined on this point and approved.
Memorandum opinion by direction of the Court, by MR. JUSTICE
In this proceeding, on November 24, 1919, this Court affirmed
the judgment of the United States District Court for the District
of Kansas rendered upon a verdict convicting the plaintiff in error
of murder in the first degree.
A petition for rehearing has been presented. It has been
considered, and we find occasion to notice only so
Page 251 U. S. 381
much thereof as refers to the refusal of the court below to
sustain the plaintiff in error's challenge for cause as to the
juror Williamson. The other grounds urged have been examined and
found to be without merit.
Williamson was called as a juror, and, as we said in our former
opinion, was challenged for cause by the plaintiff in error. This
challenge was overruled, and the juror was then challenged
peremptorily by the accused. The testimony of Williamson made it
reasonably certain that, in the event of conviction for murder in
the first degree, he would render no other verdict than one which
required capital punishment. Granting that this challenge for cause
should have been sustained, and that this ruling required the
plaintiff in error to use one of his peremptory challenges to
remove the juror from the panel, we held that the refusal to
sustain the challenge was not prejudicial error, as the record
disclosed that the defendant was allowed twenty-two peremptory
challenges, when the law allowed but twenty.
In the petition for rehearing, it is alleged that the record
discloses that in fact the accused was allowed twenty peremptory
challenges and no more, and this allegation is accompanied by an
affidavit of counsel giving the names of twenty persons challenged
peremptorily by the plaintiff in error, and stating that no other
peremptory challenges were allowed to him at the trial. In this
statement, the counsel is mistaken. An examination of the original
transcript, as also the printed transcript, shows that a juror, H.
A. Shearer, was called and examined upon his voir dire
(printed transcript, p. 79), and later was peremptorily challenged
by the plaintiff in error (printed transcript, p. 143) and excused
from the panel. H. A. Shearer's name does not appear upon the list
of those as to whom peremptory challenges were made and sustained
in plaintiff in error's behalf as given in the petition and
Page 251 U. S. 382
a rehearing. It does appear in the transcript that plaintiff in
error was allowed twenty-one peremptory challenges, and it follows
that his right to exercise such challenges was not abridged to his
prejudice by the failure to allow the single challenge for cause
which, in our opinion, should have been sustained by the trial
judge. Furthermore, the record shows that, after the ruling and
challenge as to Williamson, the plaintiff in error had other
peremptory challenges which he might have used, and the record does
not disclose that other than an impartial jury sat on the trial.
See Spies v. Illinois, 123 U. S. 131
123 U. S. 168
and cases cited.
It follows that the petition for rehearing must be denied.