exception to the exclusion of minors; 13 others to minors and women.14 It is the duty of the defendant to make the objection that the trial is not public as soon as he learns of an improper order of the court or of improper conduct by the officers in that respect.15 § 526. Challenges to petit jurors. "When the offense charged is treason or a capital offense, the defendant shall be entitled to twenty and the United States to six peremptory challenges. On the trial of any other felony the defendant shall be entitled to ten and the United States to six peremptory challenges; and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. All challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the court without the aid of triers.”1 "If, in the trial of a capital offense, the party indicted peremptorily challenges jurors above the number allowed him by law, such excess of challenges shall be disallowed by the court, and the cause shall proceed for trial in the same manner as if they had not been made." 2 "At the trial in summary cases, if by jury, the United States and the accused shall each be entitled to three peremptory challenges. Challenges for cause, in such cases, shall be tried by the court without the aid of triers."3 When a criminal prosecution is removed from a State court, the number of challenges is regulated by the statutes of the United States and not by the State law. The phrase "any other felony" in the statute first cited Oregon 289, 103 Pac. 62, 20 Ann 13 People v. Hartman, 103 Cal. 242, 37 Pac. 153, 42 Am. State Rep. 108; Tilton v. State, 5 Ga. App. 59, 62 S. E. 651. 14 Tilton v. State, 5 Ga. App. 59, 62 S. E. 651; State v. McCool, 34 Kansas 617, 9 Pac. 745. Fed. Prac. Vol. III-40 15 State v. Brooks, 92 Mo. 542, 5 S. W. 257, 330. § 526. 1 Jud. Code, § 287, 36 St. at L. 1087, re-enacting U. S. R. S., § 819. 2 U. S. R. S., § 1031. 4 Georgia v. O'Grady, 3 Woods 496, Fed. Cas. No. 5,352. designates other offenses than treason or capital offenses,5 when the offense is declared by statute, either expressly or by implication, to be a felony, in cases where the punishment is not capital, the defendant is entitled to ten challenges. A crime is a felony where Congress does not define an offense, but merely punishes it by its common law name, and at common law it is a felony; and where Congress adopts a State law as to an offense, and under such State law it is a felony. The charges of counterfeiting coin of the United States,7 of breaking into a postoffice, and of embezzling the funds of a bank, are misdemeanors, and a party charged with one of these offenses is entitled to but three challenges, not to ten, as is the case with a defendant charged with a felony.10 When several defendants are tried together, they are all entitled to no more challenges than a single defendant,11 and it has been held that the challenge of any one of them shall be counted against all.12 In another case, when they refused to unite in their challenges, the court allowed each defendant a single peremptory challenge and restricted him thereto.18 "There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges to defendants in criminal cases; trial by an impartial jury is all that is secured. The number of challenges is left to be regulated by the common law or the enactments of Congress. That body has seen fit to treat several defendants, for this purpose, as one party. If the defendants would avail themselves of this privilege they must act accordingly. It may be, as is said to have been the fact in the trial of the present case, that all defendants may not wish to exercise the right of peremptory challenge as to the same person or persons, and that some may wish to challenge those who are unobjectionable to others. But this 5 U. S. v. Coppersmith, 4 Fed. 198. 6 U. S. v. Coppersmith, 4 Fed. 198. 7 U. S. v. Coppersmith, 4 Fed. 198. 8 Considine v. U. S., C. C. A., 112 Fed. 342, 50 C. C. A. 272. 9 Tyler v. U. S., C. C. A., 106 Fed. 137, 45 C. C. A. 247. 11 Stilson v. U. S., 250 U. S. 583; Wilcox v. U. S., C. C. A., 161 Fed. 109. See supra, § 473b. 12 Wilcox v. U. S., C. C. A., 161 Fed. 109. 18 Schwartzberg v. U. S., C. C. A., 241 Fed. 348. 10 U. S. R. S., situation arises from the exercise of a privilege granted by the legislative authority and does not invalidate the law. The privilege must be taken with the limitations placed upon the manner of its exercise." 14 The accused has the right to see the jurors when he exercises his right of challenge 15 and to be present when the challenges are tried.16 When the court prescribed an erroneous method of procedure in this respect, it was held that a general exception to its direction was sufficient and that the defendant was not required specifically to demand his right and then except to such denial.17 Challenges for cause and to the favor are regulated by the rules of the common law.18 By the common law, a man is not a competent juror who is master, servant, steward or counsellor or either party, and may be challenged for the favor.19 This rule still prevails in the courts of the United States 20 upon a criminal prosecution. A juror may be challenged for cause when he is in receipt of a salary from the United States.21 It is a good ground for a challenge for principal cause, that a juror has formed a positive, decided, substantial, deliberate and well-settled opinion as to the issue to be tried.22 14 Stilson v. U. S., 250 U. S. 583, 586. 15 Lewis v. U. S., 146 U. S. 370, 13 S. Ct. 136, 36 L. ed. 1011; U. S. v. Pointer, 151 U. S. 396, 409, 14 Sup. Ct. 410, 38 L. ed. 208. 16 Hopt v. Utah, 110 U. S. 574, 4 S. Ct. 202, 28 L. ed. 262. 17 Lewis v. U. S., 146 U. S. 370, 13 S. Ct. 136, 36 L. ed. 1011. 18 Reynolds v. U. S., 98 U. S. 145, 25 L. ed. 244. Chief be impartial. Every opinion which he may entertain need not necessarily have that effect. In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits. It is clear, therefore, that upon the trial of the issue of fact raised by a challenge for such cause the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of Justice Marshall stated the rule to be: that "light impressions which may fairly be presumed to yield to the testimony that may be offered, which may leave the mind open to a fair con partiality. The question thus presented is one of mixed law and fact and to be tried, so far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. No less stringent rules should be applied by the reviewing court in such a case than those which govern in the consideration of motions for new trial because the verdict is against the evidence. It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The case must be one in which it is manifest the law left nothing to the 'conscience or discretion' of the court." Reynolds v. U. S., 98 U. S. 145, 155, 156, 25 L. ed. 244, 246, 247, per Chief Justice Waite. "In considering such questions in a reviewing court, we ought not to be unmindful of the fact we have so often observed in our experience, that jurors not unfrequently seek to excuse themselves on the ground of having formed an opinion, when, on examination, it turns out that no real disqualification exists. In such cases the manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case. The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside, and it will not be error in the court to refuse to do so."' Ibid., 98 U. S. 145, 156, 157, 25 L. ed. 244, 246, 247, per Chief Justice Waite. It was held that, under the Alaska Criminal Code, it was no ground of challenge to the favor if a juror had expressed an opinion, as to the guilt of the defendant, that it would require evidence to remove, when the juror testified that he would decide the case impartially on the evidence, uninfluenced by such opinions; Dolan v. U. S., C. C. A., 116 Fed. 578, 54 C. C. A. 34; nor that the defendant was indicted with two others for robbery, one of whom had been previously tried and convicted, that the juror had read all the public accounts for the former trial, heard the matters discussed by persons then present, formed a fixed opinion as to the guilt or innocence of the one then tried, and had formed an opinion as to the guilt or innocence of the defendant, when he testified that he had no such opinion at the time, and if selected as a juror would try the case impartially from the law and evidence produced on the trial. Hawkins v. U. S., C. C. A., 116 Fed. 569, 53 C. C. A. 663; Dolan v. U. S., C. C. A., 116 Fed. 578, 54 C. C. A. 34. sideration of the testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions which close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, constitute a sufficient objection to him." 23 If the opinion is only hypothetical, a challenge for cause will not necessarily be sustained.24 Expression of an opinion by the juror is immaterial.25 Upon the trial of an indictment for murder in the first degree, the District Attorney may ask a juror whether he has any conscientious scruples which would preclude him from rendering a verdict of guilty on circumstantial evidence, "in a case where the penalty prescribed by law is death." 26 The examination as to prejudice against capital punishment should be confined to the ascertainment of their opinions and the strength thereof with the sole object of determining whether they would approach the issue in a proper frame of mind.27 The court should not in the course of such an examination criticize the jurors because of their opinions upon this subject.28 Upon prosecution of defendants who are Socialists, it was held to be no error to ask the jurors whether they distinguished between Socialists and Anarchists.29 "In any prosecution for bigamy, polygamy, or unlawful cohabitation, under any statute of the United States, it shall be sufficient cause of challenge to any person drawn or summoned as a juryman or talesman, First, that he is or has been living in the practice of bigamy, polygamy, or unlawful cohabitation with more than one woman, or that he is or has been guilty of an offense punishable by either sections one or three of an Act entitled 'An Act to amend section fifty-three hundred and fiftytwo of the Revised Statutes of the United States, in reference to 23 Burr's Trial, vol. I, p. 416. 24 Reynolds v. U. S., 98 U. S. 145, 155, 25 L. ed. 244, 246. 25 Reynolds v. U. S., 98 U. S. 145, 157, 25 L. ed. 244, 247, per Waite, C. J. "The fact that he had not expressed his opinion is important only as tending to show that he had not formed one which disqualified him. If a positive and decided opinion had been formed, he would have been incompetent even though it had not been expressed."' 26 Hardy v. U. S., 186 U. S. 224, 22 Sup. Ct. 889, 46 L. ed. 1137. 27 Manuel v. U. S., C. C. A., 254 Fed. 273. 28 Ibid., 29 Ruthenberg v. U. S., 245 U. S. 480. |