bigamy and for other purposes,' approved March twentysecond, eighteen hundred and eighty-two, or by section fiftythree hundred and fifty-two of the Revised Statutes of the United States, or the act of July first, eighteen hundred and sixty-two, entitled 'An act to punish and prevent the practice of polygamy in the Territories of the United States and other places, and disapproving and annulling certain acts of the legislative assembly of the Territory of Utah'; or, Second, that he believes it right for a man to have more than one living and undivorced wife at the same time, or to live in the practice of cohabiting with more than one woman. Any person appearing or offered as a juror or talesman, and challenged on either of the foregoing grounds, may be questioned on his oath as to the existence of any such cause of challenge; and other evidence may be introduced bearing upon the question raised by such challenge; and this question shall be tried by the court. But as to the first ground of challenge before mentioned, the person challenged shall not be bound to answer if he shall say upon his oath that he declines on the ground that his answer may tend to criminate himself; and if he shall answer as to said first ground, his answer shall not be given in evidence in any criminal prosecution against him for any offense above named; but if he declines to answer on any ground, he shall be rejected as incompetent. 1130 Upon the trial of an indictment for polygamy, it is not error to exclude jurors who are living in polygamy.31 Upon a trial of Socialists, their rights are not infringed because the juries, grand and petit, are composed exclusively of property owners. who are members of other political parties.32 A judgment will not be reversed simply because a challenge good for favor was sustained in form for cause. No person shall serve as a petit juror in any district court more than one term in a year; and it shall be sufficient cause of challenge to any juror called to be sworn in any cause that he has been summoned and attended said court as a juror at any term of said court held within one year prior to the time of such 30 Jud. Code, § 288, 36 St. at L. 1087, re-enacting 22 St. at L. 31, § 5. See Clawson v. U. S., 114 U. S. 477, 29 L. ed. 179. 31 Reynolds v. U. S., 98 U. S. 145, 157, 25 L. ed. 244, 247. 32 Ruthenberg v. U. S., 245 U. S. 480. challenge.33 The right to a peremptory challenge, on the part of the prosecution at least, is open until the jury is sworn to try the case.34 Under the Alaska Criminal Code the court may require a defendant to exhaust all grounds of challenge, both for cause and peremptorily to each juror, as he is called, before the prosecution is called upon to challenge, and before another juror is called into the box; 35 and a subsequent peremptory challenge by him may be denied.36 After a juror has been accepted by both sides and has taken his seat in the box, but has not been sworn, he may, upon announcing himself as feeling disqualified to act impartially, be directed by the court to stand aside.37 It is too late for the defendant to challenge a juror after the latter has been sworn and the district attorney has opened the case, although he had not been previously informed that the juror had expressed an opinion unfavorable to him; 38 but in an extraordinary case this might perhaps be a ground for the withdrawal of a juror.39 No exception will lie to a preliminary ruling restricting the number of defendant's peremptory challenges.40 In order properly to raise the objection that he was thus improperly restricted, he must exhaust the number allowed him by court and then make another, to the overruling of which he must specifically except. A defendant has no right to a trial by any particular juror.42. An error in sustaining the Government's challenge for cause 43 or in granting the Government an excessive number of challenges 44 will ordinarily be disregarded when the defendant has not exhausted his peremptory challenges. 33 Jud. Code, § 286, 36 St. at L. 1087, re-enacting U. S. R. S., § 286. 34 U. S. v. Davis, 103 Fed. 457. 35 Dolan v. U. S., C. C. A., 116 Fed. 578, 54 C. C. A. 34. But see Lewis v. U. S., 146 U. S. 370, 36 L. ed. 1011. 36 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. 37 U. S. v. Davis, 103 Fed. 437. 38 Hawkins v. U. S., C. C. A., 116 Fed. 569, 53 C. C. A. 663. 39 See supra, § 473e. 40 Pearce v. U. S., 192 Fed. 561. 41 Ibid. 42 Heitler v. U. S., C. C. A., 244 Fed. 140. 43 Simpson v. U. S., C. C. A., 184 Fed. 817; Campbell v. U. S., C. C. A., 221 Fed. 186. See U. S. v. Davis, 103 Fed. 457. 44 Heitler v. U. S., C. C. A., 244 Fed. 140. An error in overruling the defendant's challenge for favor or for cause is a proper subject for exception 45 which may be sustained even if inartificial; 46 provided all his peremptory challenges are exhausted before the jury is finally selected; 47 but not otherwise.48 It is the safer practice to insist that the jurors be sworn to testify the truth upon their examination as to cause and favor before the right of challenge is exercised. A practice in favor with the judges of insisting that certain general questions be put to the jurors collectively is dangerous to the defendant because of the liability of some jurors to misunderstand such a question and the absence of the sanctity of an oath and the difficulty of punishing them for silence. It is not likely that such a practice would be sustained by the courts of review if exception thereto were duly taken and firmly insisted upon. The Supreme Court of the United States has said: "There is no statute of the United States which prescribes the method of procedure in empanelling jurors in criminal cases, and it is customary for the United States courts in such cases to conform to the methods prescribed by the statutes of the United States." 49 'While the court in the present instance did not exceed its jurisdiction in directing the empanelling of the jury by a method different from that prescribed by the state statute, and while we do not feel called upon to make suggestions as to the proper practice to be adopted by the Circuit Courts in empanelling juries in criminal cases, yet obviously all rules of practice must necessarily be adopted to secure the rights of the accused; that is, where there is no statute, the practice must not conflict with or abridge the right as it exists at common law." "' 50 § 526a. Right to counsel. By the Sixth Amendment the accused has the right "to have the Assistance of Counsel for his defense." 45 Crawford v. U. S., 212 U. S. 183, 53 L. ed. 465. 46 Ibid. 47 Crawford v. U. S., 212 U. S. 183, 53 L. ed. 465, where a challenge upon the ground that the talesman was a salaried official of the United States was held sufficient to sustain an exception when it was over ruled, the juror receiving a salary from the United States, but not being technically an official thereof. 48 Simpson v. U. S., C. C. A., 184 Fed. 817. See supra, § 473b. 49 Lewis v. U. S., 146 U. S. 370, 377, 13 S. Ct. 136, 36 L. ed. 1011. 50 Ibid. The Revised Statutes provide: "Every person who is indicted of treason or other capital crime, shall be allowed to make his full defense by counsel learned in the law; and the court before which he is tried, or some judge thereof, shall immediately, upon his request, assign to him such counsel, not exceeding two, as he may desire, and they shall have free access to him. at all seasonable hours." Where the objection was not raised upon the trial, it was held to be too late, upon an application for the writ of habeas corpus, to object that the prisoner charged with a capital offense had been represented by a counsellor who had been assigned by the court, and had not been allowed to consult with an attorney whom he had selected. Counsel assigned by the court have no right to recover compensation from the United States.3 § 527. Trials in criminal cases. The Constitution ordains: "The trial of all Crimes, except in Cases of Impeachment, shall be by Jury." "1 It has been said: that a judgment after a trial without a jury would be a nullity; 2 and that where the trial. is conducted by a judge without a jury, by consent of the parties, he acts as an arbitrator, and his conclusions of fact and rulings upon the admission of evidence cannot be reviewed upon a writ of error. A jury may be waived in prosecutions for petty offenses only.4 It has been held that a jury cannot be waived where the offense is punishable by imprisonment for more than one year.5 Ordinarily the denial of a motion by the defendant for an adjournment or a continuance is a matter within the discretion of the trial court; but in an extraordinary case where in the exercise of due diligence he has been unable to compel the attendance of material witnesses such a decision may be reviewed by a writ of error.7 § 526a. 1 U. S. R. S., § 747. 2 Andersen v. Treat, 172 U. S. 24, 43 L. ed. 351. 3 Knabb v. U. S., 1 Court Claims, 173. § 527. 1 Article III, § 2. 2 Frank v. U. S., C. C. A., 192 Fed. 864. 3 Low v. U. S., C. C. A., 169 Fed. 86; supra, § 474. 4 Schick v. U. S., 195 U. S. 65, 24 Sup. Ct. 826, 49 L. ed. 99. 5 Low v. U. S., C. C. A., 169 Fed. 86. 6 Latham v. U. S., C. C. A., 210 Fed. 159. 7 Younge v. U. S., C. C. A., 223 Fed. 941. The right to separate trials by several defendants joined in the same indictment usually rests in the discretion of the trial courts. Where their defenses are different, and in some respects antagonistic, separate trials should be granted.9 In case of a felony, the trial cannot take place in the absence of the defendant 10 and the record must show his presence.11 Upon the trial of a prosecution for a misdemeanor, the defendant has the right to be present at the trial; but he may waive this by his voluntary absence.12 "No writ is necessary to bring into court any prisoner or person in custody, or for remanding him from the court into. custody; but the same shall be done on the order of the court or District Attorney, for which no fees shall be charged by the clerk or marshal. 13 It has been held that this may be done without a special order of the court when the prisoner is in jail under an ordinary mittimus issued by a State magistrate to the sheriff,14 that the jailor may insist upon a written order from the judge or district attorney,15 that no other officer can make such an order 16 and that the statute has no application to proceedings before commissioners.17 The prosecuting officer should be the District Attorney of the United States, 18 or some person designated by the Attorney General to assist him generally, or for the special trial.19 This may be a counsel retained by private individuals who have been injured by the crime, although a State statute prohibits such an appearance.20 8 Lee Dock v. U. S., C. C. A., 224 Fed. 431; Schwartzberg v. U. S., C. C. A., 241 Fed. 348; Oppenheim v. U. S., C. C. A., 241 Fed. 625. 9 U. S. v. Rockefeller, 222 Fed. 534. 10 Hopt v. Utah, 110 U. S. 574, 4 S. Ct. 202, 28 L. ed. 262; Lewis v. U. S., 146 U. S. 370, 13 S. Ct. 136, 36 L. ed. 1011. 11 Lewis v. U. S., 146 U. S. 370, 13 S. Ct. 136, 36 L. ed. 1011. 12 U. S. v. Leckie, 1 Sprague 227, Fed. Cas. No. 15,583; U. S. v. Mayo, 1 Curtis 433, Fed. Cas. No. 15,754; U. S. v. Shepherd, 1 Hughes 520, Fed. Cas. No. 16,274. See 12 Cyc. 529. 13 U. S. R. S., § 1030. 14 U. S. v. Harden, 10 Fed. 802, 4 Hughes 455. 15 U. S. v. Martin, 17 Fed. 150, 9 Sawyer 90. 16 U. S. v. Harden, 10 Fed. 802, 4 Hughes 455. 17 U. S. v. Martin, 17 Fed. 150, 9 Sawyer 90. 18 See supra, § 483f. 20 Terry v. U. S., C. C. A., 235 Fed. 701. See § 536a, infra. |