The provision in Rev.Stat. § 1024, that
"When there are several charges against any person for the same
act or transaction, or for two or more acts or transactions
connected together, or for two or more acts or transactions of the
same class of crimes or offenses, which may be properly joined,
instead of having several indictments, the whole may be joined in
one indictment, in separate counts, and if two or more indictments
are joined in such cases, the court may order them to be
consolidated,"
leaves the court to determine whether, in a given case, a
joinder of two or more offenses in one indictment is consistent
with settled principles of criminal law, and also free to compel
the prosecution to elect under which count it will proceed when it
appears from the indictment or from the evidence that the prisoner
may be embarrassed in his defense if that course be not
pursued.
When an indictment contains two counts charging the commission
of two murders committed on the same day in the same county and
district and with the same kind of instrument, the court is
justified in forbearing at the beginning of the trial, and before
the disclosure of the facts, to compel an election by the
prosecutor between the two charges.
When, in the case of such joinder, it is developed in the course
of the trial that the accused was not confounded in his defense by
the union of the two offenses in the same indictment, and that his
substantial rights will not be prejudiced by the refusal of the
court to compel the prosecutor to elect upon which of the two he
will proceed, the court is justified in such refusal.
All the panel of jurors were examined as to their
qualifications, and thirty-seven were found not liable to objection
for cause. The defendant was
Page 151 U. S. 397
in court during this examination, was face to face with the
jurors so examined, and had an opportunity to participate in the
examination to such extent as was necessary for him to ascertain
whether any of them were liable to objection for cause, and was at
liberty to strike from the list of those thus found to be qualified
the names of the persons, not exceeding twenty, whom he did not
wish to serve on the jury.
Held that the prisoner having
been thus brought face to face with the jury during these
proceedings, the proceedings were regular.
Lewis v. United States, 146
U. S. 376, adhered to and distinguished from this
case.
The mode of designating and empaneling jurors for the trial of
cases in the courts of the United States is within the control of
those courts, subject only to the restrictions prescribed by
Congress, and to such limitations as are recognized by settled
principles of criminal law to be essential in securing impartial
juries for the trial of offenses.
A prisoner on trial in a federal court under indictment for
murder is not entitled as of right to have the government make its
peremptory challenges before he makes his, although it is within
the discretion of the court to direct it, and when the laws of the
state in which the trial takes place prescribe such a course, the
court may pursue that method or not as it pleases.
It is not indispensable to conviction for murder that the
particular motive for taking the life of a human being shall be
established by proof to the satisfaction of the jury.
When the record in a criminal case shows fully the crime for
which the prisoner was indicted and all the proceedings thereon,
through trial and verdict up to conviction and sentence, the
failure in the sentence to name the crime for which the prisoner is
sentenced may be supplied by reference to the rest of the
record.
Whether a court of the United States, in the absence of
authority conferred by statute, has the power, after passing
sentence in a criminal case, to suspend its execution indefinitely,
and until the court in its discretion removes such suspension.
quaere.
The case is stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
At the February term, 1892, of the Circuit Court of the United
States for the Western District of Arkansas, the grand
Page 151 U. S. 398
jury returned an indictment against John Pointer for the crime
of murder.
In the first count, it was charged that the defendant, on the
25th of December, 1891 at the Choctaw Nation, in the Indian
Country, within the above district, did, with an axe, feloniously,
willfully, and of his malice aforethought "strike, cut, penetrate,
and wound" upon the head one Samuel E. Vandiveer, a white man, and
not an Indian, inflicting thereby a mortal wound, from which death
instantly ensued. The second count charged the same offense, and
differed from the first only in using the words "beat, bruise," in
place of "cut, penetrate."
In the third count, the defendant was charged, in the words of
the first count, with having, in the same manner, on the 25th of
December, 1891, feloniously, willfully, and of his malice
aforethought at the Choctaw Nation, in the Indian Country, within
the same district, killed and murdered one William D. Bolding,
white man, and not an Indian. The fourth count differed from the
third only as the second count differed from the first.
The defendant pleaded not guilty. On a subsequent day of the
term, he moved to quash the indictment upon various grounds, one of
which was that it charged two distinct felonies. That motion was
overruled.
The defendant called the attention of the court to the fact that
he had been served some time before with a list of thirty-seven
jurors, and subsequently with an additional list. He objected to
that mode of serving lists of jurors by "piecemeal." To this the
court replied:
"In the first place, the list of thirty-seven was served, and it
always happens that some of the original thirty-seven cannot serve,
by reason of incompetency or sickness, and, out of abundance of
precaution, we have the additional list served on the defendant, so
that there will be a sufficient number served to go on with the
trial of the case, without waiting for two days' service on the
defendant when the case is called for trial. It is not a service by
piecemeal, but service of additional talesmen."
The entire panel of the petit jury was called, and the jurors
were examined as to their qualifications, and, the journal
entry
Page 151 U. S. 399
states, thirty-seven in number were found to be generally
qualified under the law -- that is, in the words of the bill of
exceptions, "qualified to sit on this case." The defendant and the
government were then furnished, each, with a list of the
thirty-seven jurors thus selected, that they might make their
respective challenges, twenty by the defendant and five by the
government, the remaining first twelve names not challenged to
constitute the trial jury. The defendant at the time objected to
this mode of selecting a jury:
"(1) Because it was not according to the rule prescribed by the
laws of the State of Arkansas; (2) because it was not the rule
practiced by common law courts; (3) because the defendant could not
know the particular jurors before whom he would be tried until
after his challenges, as guarantied by the statutes of the United
States, had been exhausted; (4) because the government did not
tender to the defendant the jury before whom he was to be tried,
but tendered seventeen men instead of twelve, and made it
impossible for defendant to know the twelve men before whom he was
to be tried were until after his right to challenge was ended."
At the time this objection was made, the defendant's counsel
saved an exception to the mode pursued in forming the jury, and
said: "The point we make is that the government must offer us the
twelve men they want to try the case." The court observed: "They
offered you thirty-seven." "We understand," counsel said, "but we
want to save that point."
Before the case was opened to the jury for the government, the
defendant moved that the district attorney be required to elect on
which count of the indictment he would claim a conviction. That
motion having been overruled, he was required to go to trial upon
all the counts.
Upon the conclusion of the evidence, the defendant renewed the
motion that the government be required to elect upon which count of
the indictment it would prosecute him. This motion was overruled.
After an elaborate charge by the court, the jury retired to
consider their verdict, and returned into the court the
following:
"We, the jury, find the defendant, John Pointer, guilty of
murder as charged in the first
Page 151 U. S. 400
count of the indictment. F. M. Barrick, Foreman. We, the jury,
find the defendant, John Pointer, guilty of murder as charged in
the third count of the indictment. F. M. Barrick, Foreman."
A motion for a new trial was made and overruled, and on the 30th
of April, 1892, the court sentenced the defendant to suffer the
punishment of death.
1. The motion to quash the indictment, and the motion to require
the government to elect upon which count it would try the
defendant, present the question whether two distinct charges of
murder can properly be embraced in one indictment.
It is provided by section 1024 of the Revised Statutes,
following substantially the words of the Act of February 26, 1853,
c. 80, 10 Stat. 161, that
"when there are several charges against any person for the same
act or transaction, or two or more acts or transactions connected
together, or for two or more acts or transactions of the same class
of crimes or offenses, which may properly be joined, instead of
having several indictments, the whole may be joined in one
indictment, in separate counts, and if two or more indictments are
joined in such cases, the court may order them to be
consolidated."
Although the two murders in question are alleged to have been
committed by the defendant on the same day and in the same county
and district, it does not affirmatively appear from the indictment
that they were the result of one transaction, or that they were
"connected together." But the indictment does show upon its face
that the two offenses are of the same class or grade of crimes, and
subject to the same punishment. Could both crimes properly be
joined in one indictment, in separate counts? The statute does not
solve this question, but leaves the court to determine whether, in
a given case, a joinder of two or more offenses in one indictment
against the same person is consistent with the settled principles
of criminal law. If those principles permit the joinder of two or
more felonies in the same indictment in separate counts, then the
joinder in question here was proper.
Page 151 U. S. 401
In
People v. Gates, 13 Wend. 322, 323, Chief Justice
Savage, speaking for the court, said:
"The first question arising upon the trial was whether the court
should have compelled the district attorney to elect which count he
would go upon. In
Young v. King, 3 T.R. 106, Buller, J.,
says that where different felonies are included in the same
indictment, the judge may quash the indictment lest it should
confound the prisoner in his defense, but these are only matters of
prudence or discretion. This court has recently said, in the case
of
People v. Rynders, 12 Wend. 425, that there is no
impropriety in trying a prisoner for different offenses at the same
time if the offenses are charged in the same indictment and are of
the same grade and subject to the same punishment."
Substantially to the same general effect are the decisions of
other American courts.
United States v. O'Callahan, 6
McLean 596;
Kane v. People, 8 Wend. 203, 211;
Carlton
v. Commonwealth, 5 Metc. 532, 534;
Commonwealth v.
Gillespie, 7 S. & R. 469, 476;
Commonwealth v.
Hills, 10 Cush. 530, 533;
Campbell v. State, 9 Yerg.
333, 335;
Burk v. State, 2 H. & J. 426, 429;
Storrs v. State, 3 Mo. 7;
Baker v. State, 4 Pike,
56, 58;
Wright v. State, 4 Humph.194, 196;
Johnson v.
State, 29 Ala. 62, 67;
Weinzorpflin v. State, 7
Blackford 186, 188;
State v. Hazard, 2 R.I. 474, 482;
Hoskins v. State, 11 Ga. 92, 95.
See also Logan v.
United States, 144 U. S. 263,
144 U. S.
296.
The rule in England is not materially different. In Chitty's
Criminal Law 252-253. it is said:
"In cases of felony, no more than one distinct offense or
criminal transaction at one time should regularly be charged upon
the prisoner in one indictment, because, if that should be shown to
the court before plea, they will quash the indictment lest it
should confound the prisoner in his defense or prejudice him in his
challenge to the jury, for he might object to a juryman's trying
one of the charges, though he might have no reason so to do in the
other, and if they do not discover it until afterwards, they may
compel the prosecutor to elect on which charge he will
proceed."
"But," the author adds, "this is only matter of prudence and
discretion, which it rests with the judges to exercise."
Page 151 U. S. 402
The rule is thus stated by Archbold (Crim.Pl.Pr. 95, c. 3, 8th
ed.):
"If different felonies or misdemeanors be stated in several
counts of an indictment, no objection can be made to the indictment
on that account in point of law. In cases of felony, indeed, the
judge, in his discretion, may require the counsel for the
prosecutor to select one of the felonies, and confine himself to
that. This is what is technically termed putting the prosecutor to
his election. But this practice has never been extended to
misdemeanors."
In Roscoe's Criminal Evidence, 8th Am.ed. 206, the author, after
observing that there was no objection in point of law to inserting,
in separate counts of the same indictment, several distinct
felonies of the same degree, and committed by the same offender,
and that such joinder was not a ground for arrest of judgment,
says:
"In practice, where a prisoner was charged with several felonies
in one indictment and the party had pleaded or the jury were
charged, the court, in its discretion, would quash the indictment
or, if not found out till after the jury were charged, would compel
the prosecutor to elect on which charge he would proceed."
The question of election between distinct charges has always
seemed to depend on the special circumstances of the case in which
it has arisen. For instance, in
Regina v. Trueman, 8 Car.
& P. 727, which was an indictment for arson containing five
separate counts, each charging the firing of a house of a different
owner, it appeared from the opening by the prosecutor that the
houses in question constituted a row of adjoining houses, and that
the fire was communicated to four of them from the one first set on
fire. As the burning of each house was a distinct felony, the
prisoner asked that the prosecutor be put to his election. Erskine,
J., said:
"As it is all one transaction, we must hear the evidence, and I
do not see how, in the present stage of the proceedings, I can call
on the prosecutor to elect. I shall take care that, as the case
proceeds, the prisoner is not tried for more than one felony. The
application for a prosecutor to elect is an application to the
discretion of the judge, founded on the supposition that the case
extends to more than one charge, and
Page 151 U. S. 403
may therefore be likely to embarrass the prisoner in his
defense."
While recognizing as fundamental the principle that the court
must not permit the defendant to be embarrassed in his defense by a
multiplicity of charges embraced in one indictment and to be tried
by one jury, and while conceding that regularly or usually an
indictment should not include more than one felony, the authorities
concur in holding that a joinder in one indictment, in separate
counts, of different felonies, at least of the same class or grade
and subject to the same punishment, is not necessarily fatal to the
indictment upon demurrer or upon motion to quash or on motion in
arrest of judgment, and does not in every case, by reason alone of
such joinder, make it the duty of the court, upon motion of the
accused, to compel the prosecutor to elect upon what one of the
charges he will go to trial. The court is invested with such
discretion as enables it to do justice between the government and
the accused. If it be discovered at any time during a trial that
the substantial rights of the accused may be prejudiced by a
submission to the same jury of more than one distinct charge of
felony among two or more of the same class, the court, according to
the established principles of criminal law, can compel an election
by the prosecutor. That discretion has not been taken away by
section 1024 of the Revised Statutes. On the contrary, that section
is consistent with the settled rule that the court, in its
discretion, may compel an election when it appears from the
indictment or from the evidence that the prisoner may be
embarrassed in his defense if that course be not pursued.
In the present case, we cannot say from anything on the face of
the indictment that the court erred or abused its discretion in
overruling the defendant's motion to quash the indictment or his
motions for an election by the government between the two charges
of murder. The indictment showed that the two murders were
committed on the same day, in the same county and district, and
with the same kind of instrument. These facts alone justified the
court in forbearing at the beginning of the trial, and before the
facts were disclosed,
Page 151 U. S. 404
to compel an election by the prosecutor between the two charges
of murder. When, however, the evidence was concluded -- indeed, as
soon as the defendant testified in his own behalf -- the wisdom of
the course pursued by the court became manifest, for it appeared
that the two murders were committed at the same place, on the same
occasion, and under such circumstances, that the proof in respect
to one necessarily threw light upon the other. The accused and the
two men alleged to have been murdered were companions in traveling,
and were together, in camp at the place where the killing occurred.
The killing of Vandiveer immediately preceded that of Bolding.
There was such close connection between the two killings in respect
of time, place, and occasion that it was difficult, if not
impossible, to separate the proof of one charge from the proof of
the other. It is therefore clear that the accused was not
confounded in his defense by the union of the two offenses of
murder in the same indictment, and that his substantial rights were
not prejudiced by the refusal of the court to compel the prosecutor
to elect upon which of the two charges he would proceed.
It is appropriate to say that we lay no stress upon the
circumstance that the motions in question were not made until after
the defendant had pleaded not guilty. We have already said that if,
in the progress of the trial, it appeared that the accused might be
embarrassed or confounded in his defense by reason of being
compelled to meet both charges of murder at the same time and
before the same jury, it was in the power of the court at any time
before the trial was concluded to require the government to elect
upon which charge it would seek a verdict. It is also proper to say
that we have not regarded as part of the record that which appears
in the brief of counsel for the defendant, purporting to be an
order made in the court below on the second day of October, 1893,
amendatory and explanatory of the order of March 23, 1892, relating
to the impaneling of the jury that tried this case. The object of
this amendatory order was to show more fully than was done by the
order of March 23, 1892, how the trial jury was impaneled. The
motion of defendant to strike from the
Page 151 U. S. 405
record a copy of that order was unnecessary because the
government has not moved that it be treated as part of the record,
and disclaims any purpose to ask that it shall be considered on
this writ of error. Under these circumstances, we have not
considered whether the alleged order of October 2, 1893, was within
the power of the court to make, nor have we based our conclusions
upon anything contained in it.
2. The next question to be considered relates to the impaneling
of the jury that tried the defendant. It is contended that the
action of the court below in that respect was substantially that
condemned in
Lewis v. United States, 146 U.
S. 370. But this contention cannot be sustained. The
decision in that case proceeded upon the ground that it did not
appear affirmatively from the record that the prisoner, when
required to make his challenges, was brought face to face with the
jurors whose names appeared upon the list of thirty-seven qualified
jurymen that was furnished, by direction of the court, to the
accused and the government. This Court said:
"It does indeed appear that the clerk called the entire panel of
the petit jury, but it does not appear that when the jury answered
to said call, they were present, so that they could be inspected by
the prisoner, and it is evident that the process of challenging did
not begin until after said call had been made. We do not think that
the record affirmatively discloses that the prisoner and the jury
were brought face to face at the time the challenges were made, but
we think that a fair reading of the record leads to the opposite
conclusion, and that the prisoner was not brought face to face with
the jury until after the challenge had been made and the selected
jurors were brought into the box to be sworn. Thus reading the
record, and holding as we do that making of challenges was an
essential part of the trial and that it was one of the substantial
rights of the prisoner to be brought face to face with the jurors
at the time when the challenges were made, we are brought to the
conclusion that the record discloses an error for which the
judgment of the court must be reversed."
The record before us discloses a wholly different state of
facts. It shows that the jurors were all examined as to their
Page 151 U. S. 406
qualifications, and that thirty-seven were found to be qualified
to sit in the case -- that is to say, not liable to objection for
cause; that the defendant was in court during this examination, was
face to face with the jurors so examined, and had an opportunity to
participate in the examination to such extent as was necessary to
ascertain whether any of them were liable to objection for cause,
and that he was at liberty to strike from the list of those thus
found to be qualified the names of those, not exceeding twenty,
whom he did not wish to serve on the jury. If it did not appear
affirmatively from the record of this case that the accused was in
fact brought face to face with all the jurors who were examined as
to their qualifications, and whose names were on the list of
thirty-seven furnished to him, or that he was not present during
such examination, or that they were not all in his presence when he
exercised his right of challenge, the judgment would be reversed
for the reasons stated in
Lewis v. United States. We
adhere to the decision in that case as based upon sound
principle.
The objection that the jurors were not selected in the
particular mode prescribed by the laws of Arkansas cannot be
sustained. By section 800 of the Revised Statutes of the United
States it is provided, substantially, in the words of the Act of
July 20, 1840, 5 Stat. 394, c. 47, that jurors to serve in the
courts of the United States, in the several states, shall have the
same qualifications -- subject to the provisions contained in other
sections, and which have no bearing upon this case -- and be
entitled to the same exemptions, as jurors of the highest courts of
law in the respective states may have, and be entitled to at the
time when such jurors for service in the courts of the United
States are summoned, and they are required to be
"designated by ballot, lot, or otherwise, according to the mode
of forming such juries then practiced in such state court, so far
as such mode may be practicable by the courts of the United States
or the officers thereof. And for this purpose the said courts may,
by rule or order, conform the designation and impaneling of juries,
in substance, to the laws and usages relating to juries in the
state courts from time to time in such state."
And by the Act of June 30,
Page 151 U. S. 407
1879, c. 52, § 2, 21 Stat. 43, all jurors, grand and petit, in
any court of the United States, including those summoned during the
session of the court, are required to be publicly drawn from a box
containing at the time of each drawing the names of not less than
three hundred persons possessing the qualification prescribed in §
800 of the Revised Statutes, which names shall have been placed in
the box by the clerk of court and a commissioner appointed by the
judge, who shall be a citizen of good standing, residing in the
district in which such court is held, and a well known member of
the principal political party in the district in which the court is
held opposing that to which the clerk may belong, the clerk and the
commissioner each to place one name in said box alternately,
without reference to party affiliations. That act further provides
that nothing contained in it shall be construed to prevent any
judge from ordering the names of jurors to be drawn from the boxes
used by the state authorities in selecting juries in the highest
courts of the state, and that
"no person shall serve as a petit juror more than one term in
any one year, and all juries to serve in courts after the passage
of this act shall be drawn in conformity therewith,
provided that no citizen possessing all other
qualifications which are or may be prescribed by law shall be
designated for service as grand or petit juror in any court of the
United States on account of race, color, or previous condition of
servitude."
There is nothing in these provisions sustaining the objection
made to the mode in which the trial jury was formed. In respect to
the qualifications and exemptions of jurors to serve in the courts
of the United States, the state laws are controlling. But Congress
has not made the laws and usages relating to the designation and
impaneling of jurors in the respective state courts applicable to
the courts of the United States except as the latter shall by
general standing rule or by special order in a particular case
adopt the state practice in that regard.
United
States v. Shackleford, 18 How. 588;
United
States v. Richardson, 28 F. 61, 69. In the absence of such a
rule or order (and no such rule or order appears to have been made
by the court below), the mode of designating
Page 151 U. S. 408
and impaneling jurors for the trial of cases in the courts of
the United States is within the control of those courts, subject
only to the restrictions Congress has prescribed, and also to such
limitations as are recognized by the settled principles of criminal
law to be essential in securing impartial juries for the trial of
offenses.
There is no claim in the present case that the jurors for
general service in the court below during the term at which the
defendant was tried were not selected in accordance with law. The
record shows that he was duly served with a full and complete list
of the petit jurors selected and drawn by the jury commissioners of
the court. Nor is it contended that the jurors who were examined as
to their qualifications before the list of thirty-seven qualified
jurors was furnished were not properly selected for general service
during the term. The complaint by the accused is that the
particular mode in which the jury that tried him was impaneled was
illegal. It is true that mode was not in conformity with the
statutes of Arkansas. But that objection, as already suggested,
cannot avail the accused. So that the inquiry must be whether the
jury was organized in violation of any settled principle of
criminal law relating to the subject of challenges.
The right to challenge a given number of jurors without showing
cause is one of the most important of the rights secured to the
accused. "The end of challenge," says Coke,
"is to have an indifferent trial, and which is required by law,
and to bar the party indicted of his lawful challenge is to bar him
of a principal matter concerning his trial."
3 Inst. 27, c. 2. He may, if he chooses, peremptorily challenge
"on his own dislike, without showing any cause." He may exercise
that right without reason or for no reason, arbitrarily and
capriciously. Co.Litt. 156
b; 4 Bl.Com. 353;
Lewis v.
United States, 146 U. S. 470.
Any system for the impaneling of a jury that prevents or
embarrasses the full, unrestricted exercise by the accused of that
right must be condemned, and therefore he cannot be compelled to
make a peremptory challenge until he has been brought face to face,
in the presence of the court, with each proposed juror and an
opportunity
Page 151 U. S. 409
given for such inspection and examination of him as is required
for the due administration of justice.
Were his rights in these respects impaired, or their exercise
embarrassed, by what took place at the trial? We think not. The
jurors legally summoned for service on the petit jury were, as we
have seen, examined in his presence as to their qualifications, and
thirty-seven were ascertained upon such examination to be qualified
to sit in the case. Both the accused and the government had ample
opportunity as this examination progressed to have any juror who
was disqualified rejected altogether for cause. A list of all those
found to be qualified under the law, and not subject to challenge
for cause, was furnished to the accused and to the government, each
side being required to make their challenges at the same time, and
having notice from the court that the first twelve unchallenged
would constitute the jury for the trial of the case. It is apparent
from the record that the persons named in the list so furnished
were all brought face to face with the prisoner before he was
directed to make, and while he was making, his peremptory
challenges.
Was the prisoner entitled of right to have the government make
its peremptory challenges first, that he might be informed, before
making his challenges, what names had been stricken from the list
by the prosecutor? In some jurisdictions, it is required by statute
that the challenge to the juror shall be made by the state before
he is passed to the defendant for rejection or acceptance. Such is
the law of Arkansas, and the court below was at liberty to pursue
that method. Mansfield's Digest § 2242. And such is regarded by
some courts as the better practice even where no particular mode of
challenge is prescribed by statute.
State v. Cummings, 5
La.Ann. 330, 332. But as no such provision is embodied in any act
of Congress, it was not bound by any settled rule of criminal law
to pursue the particular method required by the local law. The
uniform practice in England, as appears from the observations of
Mr. Justice Abbott, afterwards Lord Tenterden, in
Brandreth's
Case, 32 Howell's St.Tr. 755, was to require the accused to
exercise his right of challenge before
Page 151 U. S. 410
calling upon the government. He said:
"Having attended, I believe, more trials of this kind than any
other of the judges, I would state that the uniform practice has
been that the juryman was presented to the prisoner or his counsel,
that they might have a view of his person. Then the officer of the
court looked first to the counsel for the prisoner to know whether
they wished to challenge him. He then turned to the counsel for the
Crown to know whether they challenged him."
P. 771. In the same case, Lord Chief Baron Richards said that he
conceived it to be clear that "it is according to the practice of
the courts that the prisoner should first declare his resolution as
to challenging." P. 774. Mr. Justice Dallas expressed his
concurrence in those views. Pp. 774, 775. But the general rule is
that where the subject is not controlled by statute, the order in
which peremptory challenges shall be exercised is in the discretion
of the court.
Commonwealth v. Piper, 120 Mass. 185;
Turpin v. State, 55 Md. 464;
Jones v. State, 2
Blackford 475;
State v. Hays, 23 Mo. 287;
State v.
Pike, 49 N.H. 406;
State v. Shelledy, 8 Ia. 480, 504;
State v. Boatwright, 10 Rich. (Law) 407;
Schufflin v.
Ohio, 20 Ohio St. 233.
In some jurisdictions, the mode pursued in the challenging of
jurors is for the accused and the government to make their
peremptory challenges as each juror, previously ascertained to be
qualified, and not subject to be challenged for cause, is presented
for challenge or acceptance. But it is not essential that this mode
should be adopted. In
Regina v. Frost, 9 Car. & P.
129, 137, the names of jurors were taken from the ballot box, and
each was sworn on the
voir dire as to his qualifications
before being sworn to try. When the government peremptorily
challenged one who had been sworn on the
voir dire as to
his qualifications, it was objected that the challenge came too
late, because the juror had taken the book into his hand to be
sworn to try. In disposing of this objection, Chief Justice Tindal
said:
"The rule is that challenges must be made as the jurors come to
the book, and before they are sworn. The moment the oath is begun,
it is too late, and the oath is begun by the juror taking the
book,
Page 151 U. S. 411
having been directed by the officer of the court to do so. If
the juror takes the book without authority, neither party wishing
to challenge is to be prejudiced thereby."
These observations, it is apparent, had reference only to the
question whether a peremptory challenge could be permitted after
the juror had in fact taken the book into his hand for the purpose
of being sworn to try. At most, in connection with the report of
the case, they tend to show that the practice in England, as in
some of the states, was to have the question of peremptory
challenge as to each juror sworn on his
voir dire, and
found to be free from legal objection, determined as to him before
another juror is examined as to his qualifications. But there is no
suggestion by any of the judges in
Frost's case that that
mode was the only one that could be pursued without embarrassing
the accused in the exercise of his right of challenge. The
authority of the circuit courts of the United States to deal with
the subject of impaneling juries in criminal cases by rules of
their own was recognized in
Lewis v. United States,
subject to the condition that such rules must be adapted to secure
all the rights of the accused. 146 U.S.
146 U. S.
379.
We cannot say that the mode pursued in the court below, although
different from that prescribed by the laws of Arkansas, was in
derogation of the right of peremptory challenge belonging to the
accused. He was given by the statute the right of peremptorily
challenging twenty jurors. That right was accorded to him. Being
required to make all of his peremptory challenges at one time, he
was entitled to have a full list of jurors upon which appeared the
names of such as had been examined under the direction of the court
and in his presence, and found to be qualified to sit on the case.
Such a list was furnished to him, and he was at liberty to strike
from it the whole number allowed by the statute, with knowledge
that the first twelve on the list not challenged by either side
would constitute the jury, and after it was ascertained in this
mode who would constitute the trial jury, it was within the
discretion of the court to permit them to be again examined before
being sworn to try. But no such course was suggested,
Page 151 U. S. 412
and the record discloses no reason why a further examination was
necessary in order to secure an impartial jury. The right of
peremptory challenge, this Court said in
United
States v. Marchant, 12 Wheat. 480,
25 U. S. 482,
and in
Hayes v. Missouri, 120 U. S.
68,
120 U. S. 71, is
not of itself a right to select, but a right to reject, jurors.
It is true that, under the method pursued in this case, it might
occur that the defendant would strike from the list the same
persons stricken off by the government; but that circumstance does
not change the fact that the accused was at liberty to exclude from
the jury all, to the number of twenty, who, for any reason or
without reason, were objectionable to him. No injury was done if
the government united with him in excluding particular persons from
the jury. He was not entitled of right to know in advance what
jurors would be excluded by the government in the exercise of its
right of peremptory challenge. He was only entitled of right to
strike the names of twenty from the list of impartial jurymen
furnished him by the court. If upon that list appeared the name of
one who was subject to legal objection, the facts in respect to
that juror should have been presented in such form that they could
be passed upon by this Court. But it does not appear that any
objection of that character was made or could have been made to any
of the thirty-seven jurors found upon examination to be
qualified.
Thus, in our opinion, the essential right of challenge to which
the defendant was entitled was fully recognized, and there is no
reason to suppose that he was not tried by an impartial jury. The
objection that the government should have tendered to him the
twelve jurors whom it wished to try the case, or that he was
entitled to know, before making his challenges, the names of the
jurors by whom it was proposed to try him, must mean that the
government should have been required to exhaust all of its
peremptory challenges before he peremptorily challenged any juror.
This objection is unsupported by the authorities and cannot be
sustained upon any sound principle.
3. We come now to examine some of the exceptions taken
Page 151 U. S. 413
by the defendant to the charge of the court. Among other
observations made by the court to the jury were these:
"At this point it becomes necessary for us to ascertain what is
meant by these expressions, 'willfully and with malice
aforethought,' because they are the characteristics that enter into
the crime of murder. They must exist as a part of that crime. There
can be no crime of this kind without them. It is necessary,
therefore, for us to understand correctly, and to understand with
precision and accuracy, exactly what the law means by them, because
they have a legal meaning; they have a meaning that is peculiar to
the law, and it is by the application of that meaning to the facts
of the case, or the truth of the case, that you, as intelligent,
impartial, and dispassionate citizens, are able to arrive at a just
and correct and honest conclusion. In finding their existence, it
is not necessary that the proof should show that a motive for the
act done existed."
The defendant insists that the reverse of this was the law; that
proof of malice ought always to show some motive for the homicide.
What was in the mind of the court when the above observations were
made is apparent by the following clauses of the charge that
immediately follow those to which exception was taken:
"There is always a motive for every human act that is done by an
individual who is sane; but sometimes it is undiscoverable;
sometimes it cannot be fathomed; sometimes, because of its
inadequate character, because of its utter insignificant nature
compared with a great offense of that kind, honest men, whose minds
and hearts have not been corroded by the commission of crime,
overlook it; they pass it by. The law does not require
impossibilities. The law recognizes that the cause of the killing
is sometimes so hidden in the mind and breast of the party who
killed that it cannot be fathomed, and as it does not require
impossibilities, it does not require the jury to find it. Yet if
they do find it, it simply becomes an item of evidence in the case,
which is only evidentiary at best -- that is, it is only an item of
evidence going to show whether a particular party may have
committed an act, and sometimes going to show the
characteristics
Page 151 U. S. 414
of that act. The law says, however, that wherever motive can be
found, though it is not required to be found, it is the duty of the
jury to find it, though when they do find it they are not to expect
that it will ever be adequate, that it will be in proportion to the
act done, because there is nothing on this earth that is in
proportion to the crime of willfully and deliberately taking human
life. There is no motive adequate to it. There is nothing that can
be weighed upon the one side of the scale with the crime of
deliberate and wicked murder upon the other side of it, and be
pronounced by honest men as equal in weight to the crime committed.
The law says that motive need not be proportionate to the
heinousness of the crime."
We do not perceive any substantial error of law in what the
court said upon the subject of motive. While, as stated, a motive
exists for every act done by a person of sound mind, it is not
indispensable to conviction that the particular motive for taking
the life of a human being shall be established by proof to the
satisfaction of the jury. The absence of evidence suggesting a
motive for the commission of the crime charged is a circumstance in
favor of the accused, to be given such weight as the jury deems
proper; but proof of motive is never indispensable to conviction. 1
Bishop's Cr.Pro. § 1107, and authorities there cited. Malice may be
presumed from the mere fact of killing, nothing further being
shown.
Commonwealth v. York, 9 Met. 93, 114;
Commonwealth v. Hawkins, 3 Gray 463; 1 Greenl. Ev. § 34.
The charge being murder, if the facts constituting that offense
were established beyond a reasonable doubt, it was the duty of the
jury to have found the defendant guilty as charged, although it may
have been impossible to discover any adequate motive for the
killing. As said in
Clifton v. State, 73 Ala. 473:
"The presence or absence of a motive for the commission of the
offense charged is always a legitimate subject of inquiry, . . .
but it is not in any case indispensable to a conviction. It is not
an element of the burden of proof the law devolves upon the
prosecution whether the agency or connection of the accused is
manifested by direct and positive evidence or only by
circumstantial evidence that a motive or inducement to commit
Page 151 U. S. 415
the offense should be proved. The criminal act, and the
connection of the accused with it, being proved beyond a reasonable
doubt, the act itself furnishes the evidence that to its
perpetration there was some cause or influence moving the
mind."
So in
McLain v. Commonwealth, 99 Penn.St. 86, 89,
"it was further urged that no adequate motive was shown to
induce the accused to commit the crime charged. The court well said
the commonwealth was not bound to establish an adequate motive for
the alleged crime, and declared, in the words of this Court, 'the
fact of murder being established, the inability to discover the
motive does not disprove the crime.'"
There was evidence before the jury tending to show that the
murders in question were committed in order that the defendant
might appropriate certain property of inconsiderable value in the
possession of the murdered men. Under the circumstances, the
inquiry would naturally arise in the minds of jurors whether murder
would be committed for reasons so trivial. The court, after
observing that all persons were apt to act on inadequate motives
and that the history of crime showed that murders were generally
committed from motives comparatively trivial, said:
"So, also, for the smallest plunder, murders have been
deliberately executed. We have an illustration of this in the trial
of Muller, in England in 1873, for the murder of Briggs. Briggs'
watch was seen by Muller in a railway car. Briggs was asleep. The
watch was exposed, and Muller killed Briggs by a sudden attack, and
succeeded in making his escape. He was afterwards arrested,
convicted on circumstantial evidence, and before execution
confessed the crime of the murder. Until the confession, the
justice of the conviction was largely criticized on the ground that
the stealing of a watch was not a motive that could explain a
murder so bold, so cruel, and the chances of exposure so
great."
But the court added in the same connection:
"But the reply to this is obvious. Crime is rarely logical.
Under a government where the laws are executed with ordinary
certainty, all crime is a blunder, as well as a wrong. If we should
hold that no crime is to be punished except such as is rational,
then there would be no crime to be punished, for no crime can be
found
Page 151 U. S. 416
that is rational. The motive is never correlative to the crime,
never accurately proportioned to it. Nor does this apply solely to
the very poor; very rich men have been known to defraud others even
of trifles, to forge wills, to kidnap and kill, so that an
inheritance might be theirs. When a powerful passion seeks
gratification, it is no extenuation that the act is illogical, for
when passion is once allowed to operate reason loosens its
restraints."
Reference was also made to a portion of a charge delivered by a
judge in New York upon the subject of motive for the commission of
crime, in which it was said that a small sum of money, a word
spoken in anger, an insult, wrongs real or imaginary, revenge,
jealousy, hatred, envy, and malice often lead to the commission of
the crime of murder. In that connection, the court below said:
"Therefore, in finding the existence of these elements that go
to characterize a killing so as to make it murder, you may find
their existence, though you do not find any motive."
The defendant excepted to that part of the charge referring to
the circumstances of the murder case in England as an exaggerated
statement of another case in a manner well calculated to influence
the minds of the jurors against the prisoner, and to convict
without sufficient evidence and hope for a confession from the
prisoner to prove the correctness of their verdict. We do not think
the exception well founded. Although the practice of alluding to
the details of other cases given in the books while a jury is being
charged upon the facts of the particular case on trial is by no
means to be commended, we cannot say that the jury in this case
were misled by the reference made to what appeared, or was said by
judges, in other cases. It must be assumed, if the contrary does
not appear, that jurors understand that these allusions to other
cases are made only for purposes of illustration. It is
impracticable to prescribe the particular mode in which a judge
shall express to jurors his views of the case about to be
determined by their verdict. That must of necessity be left to his
discretion. If, in charging a jury, a judge chooses to employ the
words of others in order to convey the exact
Page 151 U. S. 417
thought in his own mind, or if he prefers, for purposes merely
of illustration, to read from the opinions or judgments of other
courts, we cannot hold that such practice, although not to be
encouraged, is, in the absence of a statute prescribing a different
rule, ground for the reversal of the judgment of the trial court.
If a judgment should in any case be reversed upon such ground, it
should only be where it appears that the jury has been misled by
the particular mode in which they were charged to the prejudice of
the substantial rights of the accused.
4. It is said that the record fails to show that all things were
done in the court below that were necessary to be done before the
sentence of death was pronounced, in this: first, the record
nowhere states that the verdict was received and recorded; second,
there is no record of any judgment declaring plaintiff in error to
be guilty of murder.
In respect to the first of these objections, it is sufficient to
say that it appears from the journal entries of the trial, as well
as from the bill of exceptions, that the verdicts of guilty on the
first and third counts, respectively, were returned into and were
recorded by the court in the presence of the accused, whereupon
upon the jury were discharged from the further consideration of the
case and the defendant remanded to the custody of the marshal to
await the final sentence.
The second of the objections above stated is based upon the
following order, under the caption of the United States v. John
Pointer. Indictment for Murder. No. 37, and made April 30,
1892:
"On motion of William H. H. Clayton, Esq., attorney for the
Western District of Arkansas, the said defendant, John Pointer, was
brought to the bar of this Court in custody of the marshal of said
district, and, it being demanded of him what he has to say or can
say why the sentence of the law upon the verdict of guilty
heretofore returned against him by the jury in this cause on the
26th day of March, 1892, shall not now be pronounced against him,
he says he has nothing further or other to say than he has
heretofore said."
"Whereupon, the premises being seen, and by the court well
Page 151 U. S. 418
and sufficiently understood, it is considered by the court that
the said marshal of the district aforesaid cause the said John
Pointer to be taken hence, and him, the said John Pointer, safely
and securely keep from the date hereof until Tuesday, the 28th day
of June, A.D. 1892, and on that day, and between the hours of nine
o'clock in the forenoon and five o'clock in the afternoon of said
day, the said marshal cause the said John Pointer to be taken to
some convenient place within this district, to be appointed by said
marshal, and then and there, between the said hours of nine o'clock
in the forenoon and five o'clock in the afternoon, on Tuesday, the
said day of June, in the year of our Lord one thousand eight
hundred and ninety-two, cause the said John Pointer to be hanged by
the neck until he is dead."
"And it is further considered by the court that the United
States of America do have and recover all their costs in and about
this prosecution laid out and expended, and that they have
execution therefor."
"And the clerk of this Court is hereby required to furnish the
marshal of this district with a duly certified copy of this
judgment, sentence, and order, which shall be returned by said
marshal with a full and true account of the execution of the
same."
The specific objection to the sentence is that it does not state
the offense of which the defendant was found guilty, or that the
defendant was guilty of any named crime. This objection is
technical, rather than substantial. The record of the trial
preceding the sentence shows an indictment returned into court by
grand jurors duly selected, impaneled, sworn, and charged to
inquire in and for the body of the Western District of Arkansas, in
which, in separate counts, they, upon their oaths, charge the
defendant with having within that district, on a named day, killed
and murdered Samuel E. Vandiveer and William D. Bolding. The
indictment itself is given, and it appears that the defendant was
brought into court upon it; that he was arraigned, and pleaded not
guilty to the charges contained in it; that he was tried upon the
same indictment before a petit jury lawfully impaneled and
sworn;
Page 151 U. S. 419
and that a verdict of guilty of murder as charged in the first
and third counts, respectively, of that indictment was returned
into court March 26, 1892, and was received and incorporated into
the record of the trial. When, therefore, the defendant was brought
into court and asked what he had to say
"why the sentence of the law upon the verdict of guilty
heretofore returned against him by the jury in this cause on the
26th day of March, 1892, shall not now be pronounced against
him,"
all doubt as to the offense of which he was found guilty and on
account of which he was sentenced to be hanged is removed. The
sentence itself is in the record, and the record shows everything
necessary to justify the punish ment inflicted. While the record of
a criminal case must state what will affirmatively show the
offense, the steps, without which the sentence cannot be good, and
the sentence itself,
"all parts of the record are to be interpreted together, effect
being given to all, if possible, and a deficiency at one place may
be supplied by what appears in another."
1 Bishop's Cr.Pro. §§ 1347, 1348. For these reasons the
objection last stated is not sustained.
5. Some reference should be made to an order entered on the same
day, but after the sentence was passed, in these words:
"Ordered by the court that sentence be suspended on the third
count of the indictment, on which the defendant was tried and
convicted by the jury for the killing of William D. Bolding."
The record does not state the grounds upon which this order was
based. Its object, we suppose, was to restrict the sentence to one
of the two charges of murder embraced in the indictment, although
the defendant had been tried and found guilty upon both. Be this as
it may, that order constitutes no reason in itself for the reversal
of the judgment. It did not prejudice the substantial rights of the
accused, because it did not prevent this Court, upon the present
writ of error, from reversing the judgment in its application to
all the charges contained in the indictment. This Court having
reached the conclusion that the judgment must be affirmed, any
question as to the propriety or legality of the order suspending
the sentence as to the court charging the murder of Bolding is
immaterial. It is necessary, however, in order to
Page 151 U. S. 420
avoid any misapprehension, to say that this Court must not be
understood as expressing any opinion upon the question suggested by
the words of that order, whether a court of the United States, in
the absence of authority conferred by statute, has the power, after
passing sentence in a criminal case, to suspend its execution
indefinitely, and until the court, in its discretion, removes such
suspension. A decision of that question is not necessary to the
disposition of this case upon its merits.
There are assignments of error other than those above examined,
but they are without merit, and therefore need not be noticed in
this opinion.
We perceive no error in the record to the prejudice of the
substantial rights of the plaintiff in error.
Judgment affirmed.