Under §§ 34, 35 of the Foraker Act of 1900, 31 Stat.
5, this Court can review judgments of the District Court of the
United States for Porto Rico in criminal cases where the accused
claimed, and, as alleged, was denied, a right under an act of
Congress and under the Revised Statutes of the United States.
Page 198 U. S. 157
Although a motion in arrest of judgment, based on the ground
that the grand jury was not properly impaneled by reason of the
deputy clerk's acting in place of the clerk, was made in time, and
the court below may have erred in its interpretation of the
statute, the accused cannot avail of that even in this Court unless
the record shows that an exception was properly taken. The accused
could have waived such an objection to the grand jury, and, by not
excepting to the ruling, he must be held to have acquiesced in the
ruling and waived his objection.
This writ of error brings up for review a final decree of the
District Court of the United States for the District of Porto Rico
by which, in conformity with the verdict of a jury, the plaintiffs
in error, Rafael Rodriguez and Euripides Rodriguez, were sentenced
to confinement in the penitentiary, the former, for three years at
hard labor, the latter, for two years, and to pay a fine of
$500.
The indictment contained two counts. The first count charged
that, on the first day of November, 1902, in the District of Porto
Rico, the defendants unlawfully conspired together to steal,
embezzle, and purloin the moneys of the United States, and that, to
effect the object of such conspiracy, Rafael Rodriguez, on the
above date, being a postmaster of the United States, did
feloniously steal, embezzle, and purloin out of certain letters
which came to his possession as postmaster, and which had not then
been delivered to the party to whom they were directed, divers bank
notes and United States notes, the property of the United States,
of the value of $560. The second count charged that the defendants
(Rafael Rodriguez being postmaster, as aforesaid) on the above
date, and within the said district, feloniously stole, embezzled,
and purloined bank notes and United States notes, the property of
the United States, of the value of $560, out of certain letters
addressed to the postmaster of the United States at San Juan, Porto
Rico, and intended to be conveyed by mail, which letters had
previously come into the possession of Rafael Rodriguez, as
postmaster, and had not then been delivered to the party to whom
they were directed.
Page 198 U. S. 158
The defendants jointly moved to quash the indictment upon
grounds substantially involving its sufficiency. The motion was
overruled, the court observing:
"The indictment charges the defendants with conspiring to commit
an offense, and that, in pursuance to that, one of them did certain
acts which, owing to the alleged conspiracy, were the acts of both.
The use of the word 'embezzle' in the indictment is surplusage. The
charge is a larceny as described in the indictment."
The defendants took an exception.
The defendants then moved to quash the panel of petit jurors, on
the ground, among others, that the jurors had not been selected and
drawn in the mode required by the Revised Statute of the United
States. On this motion, evidence was heard, but the evidence was
not made a part of the record by bill of exceptions or otherwise.
The motion to quash was denied.
Thereupon, the defendants were arraigned, and pleaded not
guilty. Bystanders were summoned to serve on the panel, and from
them a jury was selected. No objection was made to the jury so
selected.
The result of the trial was a verdict of guilty on the first
count.
After the return of the verdict, the accused moved in arrest of
judgment upon the following grounds: that the grand jury was not
selected or drawn according to the requirements of the statute in
such cases made and provided; that the clerk of the court took no
part in the selection of the names to be placed in the jury box,
but the other jury commissioner of the court, after directing a
deputy clerk to prepare lists and tickets of persons, placed all
the tickets with names in the box himself; that from the tickets
and names so placed in the box by the commissioner, the grand jury
was subsequently drawn; that the deputy clerk was not and is not a
person authorized under the law to take part in the selection or
drawing the grand and petit juries of the court; that he had not
been theretofore appointed by the court for that purpose; that
he
Page 198 U. S. 159
was not shown to be of a different political affiliation from
the jury commissioner theretofore appointed by the court, and that
said names were not placed in the box alternately by the
commissioner and the clerk. 21 Stat. 43, c. 52.
The motion in arrest of judgment was overruled, the court making
an order which contained the following recitals:
"It appears the regular jury commissioner, Andres Crosas, and
the deputy clerk, Frank Antonsanti, acted in doing so, the clerk of
the court being absent on sick leave. There is no charge of
corruption or that the selection was not by impartial persons. The
general rule as to provisions of law for the selection of jurors is
that they are only directory. There appear to have been some
irregularities and not an exact compliance with the terms of the
statute, but both the commissioner Crosas and the deputy clerk made
the selection, and both were present all the time during the
selection, and no one else took part in it. It is not shown they
are not of opposite politics, and this is to be presumed. There was
no such material irregularity as vitiated the panel, but a
substantial compliance with the statute upon the subject. The
motion in arrest of judgment is overruled."
Subsequently the defendant moved for a new trial upon various
grounds. That motion was overruled, and this writ of error was
brought.
Page 198 U. S. 161
MR. JUSTICE HARLAN, after making the foregoing statement,
delivered the opinion of the Court.
The first question is one of the jurisdiction of this Court to
reexamine the judgment below, the government insisting that we are
without jurisdiction.
We are of opinion that this question is settled by
Crowley
v. United States, 194 U. S. 461,
194 U. S. 462,
which was a criminal prosecution for the violation of certain
statutes of the United States relating to the postal service.
By the Act of April 12th, 1900, 31 Stat. 85, c. 191,
establishing a civil government for Porto Rico, it was provided
that, except as otherwise provided, the statutory laws of the
United States shall have the same force and effect in Porto Rico as
in
Page 198 U. S. 162
the United States; also, that writs of error and appeals may be
prosecuted from the final decisions of the District Court of the
United States for Porto Rico "in all cases where . . . an act of
Congress is brought in question and the right claimed thereunder is
denied." Section 35. The same act provided that the United States
court for Porto Rico shall have jurisdiction "of all cases
cognizant in the circuit courts of the United States, and shall
proceed therein in the same manner as a circuit court." Section 34.
In
Crowley's case, the contention of the accused, based
upon a plea in abatement, was that certain members of the jury
finding the indictment were disqualified under the local law to
serve as grand jurors, and that the statutes of the United States
made it the duly of the district court to follow the local law in
that respect. Referring to the above act, we said:
"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 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."
As the Porto Rican statutes contain no provisions relating to
the selection, drawing, or impaneling of grand jurors, it was, as
the accused contends in this case, the duty of the District
Page 198 U. S. 163
Court of the United States for Porto Rico, in criminal
prosecutions for crimes against the United States, to keep crimes
against the United States, to keep in view section 800 of the
Revised Statutes, which provides:
"Jurors to serve in the courts of the United States, in each
state respectively, shall have the same qualifications, subject to
the provisions hereinafter contained, and be entitled to the same
exemptions, as jurors of the highest court of law in such state 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 shall 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 jurors in the
state courts, from time to time in force in such state."
It was also its duty in such prosecutions to conform to the Act
of Congress of June 30, 1879, 21 Stat. 43, c. 52, which provides
that jurors to serve in the courts of the United States
"shall be publicly drawn from a 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, which names shall have been placed therein by the
clerk of such court and a commissioner, to be appointed by the
judge thereof, which commissioner 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 said commissioner each to place one
name in said box alternately, without reference to party
affiliations, until the whole number required shall be placed
therein, . . . and all juries to serve in courts after the passage
of this act shall be drawn in conformity herewith."
When, therefore, the accused in this case, by their motion
Page 198 U. S. 164
in arrest of judgment, claimed the benefit of the above
statutes, the acts of Congress referred to were brought in question
within the meaning of the Act of April 12, 1900, as interpreted in
the
Crowley case, and the rights asserted by the accused
under those statutes having been denied when the motion in arrest
of judgment was overruled, the case could be brought here. The
words "brought in question" in that act do not mean that the
accused, in order to bring the final judgment here, must have
disputed the validity of the acts of Congress which were alleged to
have been violated to their prejudice. It was quite sufficient that
they should assert rights under those acts, and that the rights so
claimed were denied to them.
Crowley v. United States,
supra.
The government, however, contends that the motion in arrest of
judgment came too late, and in support of that view, cites the
following language from
United States v. Gale,
109 U. S. 65,
109 U. S.
69:
"Much more would it seem to be requisite that all ordinary
objections, based upon the disqualification of particular jurors,
or upon informalities in summoning or impaneling the jury, where no
statute makes proceedings utterly void, should be taken
in
limine, either by challenge, by motion to quash, or by plea in
abatement. Neglecting to do this, the defendant should be deemed to
have waived the irregularity."
Wharton, Crim.Pl. & Prac. §§ 344, 350, 426. But,
in the same case, the court said what is pertinent to the present
discussion:
"There are cases, undoubtedly, which admit of a different
consideration, and in which the objection to the grand jury may be
taken at any time. These are where the whole proceeding of forming
the panel is void, as where the jury is not a jury of the court or
term in which the indictment is found;
or has been selected by
persons having no authority whatever to select them; or where
they have not been sworn; or where some other fundamental requisite
has not been complied with."
Here, the objection to the grand jury was, in substance, that it
was not such a body as could legally find an indictment. This view
rests upon the ground that the names were placed
Page 198 U. S. 165
in the box by a jury commissioner and by a deputy clerk, the
latter, it is contended, having no authority to act at all in such
a matter in place of the clerk, because the statute required the
joint action of a commissioner and the clerk of the court. If,
therefore, the requirement that the grand jurors should be selected
by the commissioner and the clerk was a fundamental requisite --
that is, if the deputy clerk, in the absence of the clerk, had no
authority, under any circumstances, to act -- then the motion in
arrest of judgment did not come too late. There are authorities
which give some support to the view that this requirement is of
substance, and not a mere "defect or imperfection in matter of form
only." Rev.Stat. § 1025;
Hulse v. State, 35 Ohio St.
421. Whether this position be well taken or not we do not stop to
consider, for, assuming that the motion in arrest of judgment was
made in time, and assuming even that the court, as matter of law,
erred in its interpretation of the statute, still the accused
cannot avail themselves here of that error, for the record does not
show any exception taken to the overruling of the motion in arrest
of judgment. By not excepting to the ruling of the court, the
accused must be held to have acquiesced in it, and to have waived
the objection made to the grand jury. We perceive no reason why
they could not have legally waived an objection based upon the
grounds stated in the motion.
This disposes of the case; for the assignments of error present
no other question that needs to be noticed. Besides, counsel for
the accused have properly confined their discussion of the case to
the question of the jurisdiction of this Court, and to the action
of the court below in overruling the motion in arrest of judgment.
The judgment is
Affirmed.
