ing, 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, or a duly qualified deputy clerk then acting, may belong, the clerk, or a duly qualified deputy 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."1 More than one jury commissioner may be appointed in a district.2 It has been held that an appointment may be made of a man registered as an Independent, who had for many years been a member of the principal party opposed to that of the clerk.3 Before the recent amendment of the statute it was held that the commissioner might be appointed by a judge of another district, authorized to hold court there. The duty of selection cannot be delegated nor exercised by any one except the officers named in the statute. But when the name of one of the grand jurors who found an indictment was not put into the box by any competent authority, nor drawn from the box, it was held that the indictment was not vitiated when there was no imputation that the name appeared in the venire through bad faith. It has been held that a plea in abatement was insufficient when it merely alleged that an unauthorized person placed certain names in the box, without alleging that any of the grand jurors who were drawn, and acted and returned the indictment, were jurors whose names were placed in the box by the deputy clerk; as it was not sufficient to say that the defendants did not know whether or not any name placed in the box by the deputy clerk was drawn.7 In the selection of the names to be placed in the box by the clerk and the jury commissioner each has a right to select his $ 510. 1 Jud. Code, § 276, 36 St. at L. 1087, as amended, Act of Feb. 3, 1917, ch. 27, Comp. St., § 1253, reenacting in substance Act of June 30, 1879, ch. 52, § 2, 21 St. at L. 43. See U. S. v. Miller, 187 Fed. 369. 2 U. S. v. Rockefeller, 221 Fed. 462. 3 U. S. v. Coplis, 257 Fed. 840. 4 May v. U. S., C. C. A., 199 Fed. 53. 5 Dunn v. U. S., C. C. A., 238 Fed. 508. 6 U. S. v. Ambrose, 3 Fed. 283. 7 U. S. v. Rockefeller, 221 Fed. 462. names, absolutely independent of the other.8 Neither has the right to accept suggestions from others as to the names to be placed in the box, although either may properly request information from others as to the character and fitness of persons whose names are under consideration.10 Where a new jury commissioner is appointed, he and the clerk may use the box in which names were placed by the clerk and his predecessor; and, in the absence of testimony, it will be presumed that the names which he there finds were duly placed therein.11 Where jurors were lawfully chosen it was held to be of no moment that their names were placed in the jury box by handfuls, instead of alternately by the clerk and by the commissioner.12 Where the boxes for the juries of the District and Circuit Courts contained more than three hundred names, and the court directed the jury to be drawn "from the jury boxes," the indictment was not quashed because the grand jury was in fact drawn from one of the boxes, which contained less than three hundred names.13 Nor on the ground that the jury box was not kept continuously in the clerk's custody, where, in pursuance of the usual practice, a jury for another division of the same district was drawn at the official residence of the judge and then transmitted to the clerk's office in the other division by a reliable express company.14 It is no objection to a grand jury that, when they were drawn, there were in the jury box the names of only three hundred and three persons, of whom three were ineligible and three dead. It has been held that the legality of the panel is not affected by a direction of the court that additional grand jurors be summoned, after a sufficient number have been impanelled and sworn to constitute a legal grand jury,15 and that the summons by the marshal of some of the members of a grand jury, by the order of the court, from the body of the district, without drawing their names, will not affect the validity of an indictment where the persons thus summoned are duly qualified.16 An indictment was quashed where the court ordered that thirty-six names be drawn for the formation of a grand jury and that the marshal summon therefrom twenty-three persons whom he should select.17 No notice of the drawing of the grand jurors need be given to anyone.18 16 U. S. v. Nevin, 199 Fed. 831. 17 U. S. v. Lewis, 192 Fed. 633. 18 U. S. v. Lewis, 192 Fed. 633. Under the Revised Statutes, it was held that the Federal courts had a large discretion as to the extent to which they might follow the details of State practice and avail themselves of the services of State officers, and that they might exercise this either by a general standing rule or by a special order. Silsbury v. Foote, 14 How. 218, 14 L. ed. 394, U. S. v. Shackleford, 18 How. 588, 15 L. ed. 495; U. S. v. Richardson, 28 Fed. 61, 69; U. S. v. Gardiner, 5 Chicago Leg. News, 501; U. S. v. Wilson, 6 McLean, 604. Substantial conformity was all that was required. U. S. v. Douglass, 2 Blatchf. 207; U. S. v. Reed, 2 Blatchf. 435; U. S. v. Tallman, 10 Blatchf. 21; U. S. v. Collins, 1 Woods, 499; U. S. v. Woodruff, 4 McLean, 105 Silsby v. Foote, 14 How. 218, 14 L. ed. 394; U. S. v. Shackleford, 18 How. 588, 15 L. ed. 495; U. S. v. Rondeau, 16 Fed. 109; Kie v. U. S., 27 Fed. 351; U. S. v. Richardson, 28 Fed. 61; U. S. v. Benson, 31 Fed. 896; U. S. v. Dow, Taney, 34. It was held that a change in the practice of the State courts in the mode of summoning jurors, although based upon a statute, is not binding upon the Federal courts, until they have adopted it by rule, or otherwise. Alston v. Manning, Chase, 460; that an indictment was not rendered invalid because the notice of the town meeting for drawing the grand jur ors was posted only three days, instead of four, as was required by the venire facias, issued to the constable, and the State statutes; U. S. v. Richardson, 28 Fed. 61, 69, 74; that the drawing of the jurors within thirty days after each term, and not, as in the State court, on the last day of the term, was an immaterial variance; U. S. v. Collins, 1 Woods, 499; that it was not necessary that the officers who attended to drawing the jurors should be the same, either in rank or in number, nor that the jury boxes should be the same in material or shape, nor that they should be kept in the same shape and manner, nor that the same number of names should be placed in the box as in the State courts. U. S. v. Collins, 1 Woods, 499; U. S. v. Wilson, 6 McLean, 604; that the marshal of the United States was the proper person to attend to the matter. U. S. v. Collins, 1 Woods, 499; that the jurors need not be taken from the lists made by the State authorities; U. S. v. Collins, 1 Woods, 499; but that this might be done; U. S. v. Richardson, 28 Fed. 61; 69; that a State law requiring that jurors be taken from the books of a certain officer, the receiver of tax returns, was not binding upon the Federal courts; U. S. v. Collins, 1 Woods, 499, but that, where the State law in Illinois required that the jurors should be selected by an officer, a rule requiring the clerk to issue a venire facias to the marshal, authorizing the latter "Jurors shall be returned from such parts of the district from time to time as the court shall direct, so as not to incur any unnecessary expense or unduly to burden the citizens of any part of the district with such services." 19 This statute is constitutional.20 It applies to grand, as well as to petit juries.21 Where two-thirds of the population of the district resided in a city where the defendant resided and the case involved large questions concerning interstate commerce, the panel of jurors, composed principally of farmers and drawn almost entirely from outside the city, was set aside.22 It has been held that the court has power to direct the clerk and commissioner to place in the box the names of a specified number of persons residing in the division of the district where the court is held, divided in a certain proportion among the different counties therein without regard to the population of such counties.23 There is no law or rule requiring an apportionment of the names selected in accordance with the population of the various towns and wards in a county, or in proportion to the persons liable to jury duty residing therein.24 It is no objection to the legality of a grand jury that it was drawn from a district larger in area, but including the district as constituted at the time the offense was committed.25 "When, from challenges or otherwise, there is not a petit jury to determine any civil or criminal cause, the marshal or his deputy shall, by order of the court in which such defect of to select the jurors at his convenience, instead of requiring their selection before the issue of the writ, did not conform to the State statute. U. S. v. Woodruff, 4 McLean, 405, Fed. Cas. No. 16,758, construing Illinois act of 1845. But, it was held, that the provisions of the Missouri statute, concerning the manner of drawing grand juries, were directory and need not be followed. U. S. v. Eagan, 30 Fed. 608. 19 Jud. Code, § 277, 36 St. at L. 1087, re-enacting U. S. R. S., § 802. 20 Ruthenberg v. U. S., 245 U. S. 21 Agnew v. U. S., 165 U. S. 36, 44, 41 L. ed. 624, 627; U. S. v. Stowell, 2 Curtis, 153. 22 U. S. v. Standard Oil Co., 170 Fed. 988. 23 Merchants' & Miners' Transp. Co. v. U. S., C. C. A., 199 Fed. 902; affirming U. S. v. Merchants' & Miners' Transp. Co., 187 Fed. 355. 24 U. S. v. Murphy, 224 Fed. 554. 25 McKinney v. U. S., C. C. A., 199 Fed. 25. As to grand juries in Illinois, see § 66, supra. jurors happens, return jurymen from the bystanders sufficient to complete the panel; and when the marshal or his deputy is disqualified as aforesaid, jurors may be so returned by such disinterested person as the court may appoint, and such person shall be sworn, as provided in the preceding section." 26 "When special juries are ordered in any district court, they shall be returned by the marshal in the same manner and form as is required in such cases by the laws of the several states." 27 "Every grand jury empaneled before any District or Circuit court shall consist of not less than sixteen nor more than twentythree persons. If of the persons summoned less than sixteen attend, they shall be placed on the grand jury, and the court shall order the marshal to summon, either immediately or for a day fixed, from the body of the district, and not from the bystanders, a sufficient number of persons to complete the grand jury. And whenever a challenge to a grand juror is allowed, and there are not in attendance other jurors sufficient to complete the grand jury, the court shall make a like order to the marshal to summon a sufficient number of persons for that purpose. 28 An indictment against a negro will not be quashed because there was no colored man on the grand jury 29 unless there is proof of a discrimination in the selection of grand jurymen.3 30 On the trial of a colored person, there was no error in refusing to require that at least one colored person be included in the jury, where there was no showing that colored jurors were excluded by the court, or those acting under it.31 § 511. Proceedings of grand jury. The grand jury must consist of not less than sixteen, nor more than twenty-three, persons.1 "From the persons summoned and accepted as grand jurors, the court shall appoint the foreman, who shall have 26 Ibid., § 280, re-enacting U. S. R. S., § 804. See Lovejoy v. U. S., 128 U. S. 171, 32 L. ed. 389. 27 Ibid., § 281, re-enacting U. S. R. S., § 805. 28 Ibid., § 282, re-enacting U. S. R. S., § 808. See U. S. v. London, 176 Fed. 976. 29 Younge v. U. S., C. C. A., 242 Fed. 788. 30 Ibid.; Neal v. Delaware, 103 U. S. 370, 26 L. ed. 567. 31 Younge v. U. S., C. C. A., 242 Fed. 788. § 511. 1 Jud. Code, § 282, 36 St. at L. 1087 re-enacting U. S. R. S., $ 8. See U. S. v. London, 176 Fed. 976. |